Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a). (b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. (c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2: (i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or (ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or (iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or (iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or (v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Hortonworks, Inc.), Investors’ Rights Agreement (Hortonworks, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company If SM&A shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial OfferingFebruary 1, 1999, a written request from the Holders of thirty at least thirty-five percent (3035%) or more of the Registrable Securities then outstanding that SM&A file a registration statement on Form S-3 under the Act covering the registration of at least thirty-five percent (35%) of the Registrable Securities then outstanding (for purposes of this Section 1.2, or a lesser percent if the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least would exceed $10,000,0002,000,000), then the Company SM&A shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.22(b), use all commercially reasonable its best efforts to effect, as soon as practicableat the earliest possible date, but in any event within forty-five (45) days of the date of the original written request from the Holders, file the registration on registration statement under the Act of on Form S-3 covering all Registrable Securities that which the Holders thereof request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s such notice pursuant to this by SM&A in accordance with Section 1.2(a)18 below.
(b) If the Holders initiating the registration request under this Section 2 ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company SM&A as a part of their request made pursuant to this Section 1.2, 2 and the Company SM&A shall include such information in the written notice referred to in Section 1.2(a2(a). The underwriter with respect to such Form S-3 registration only will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to SM&A. In such event event, the right of any Holder to include its his Registrable Securities in such registration on Form S-3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall (together with SM&A as provided in Section 4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of in the Registrable Securities held by all Initiating Holders (which underwriter or underwriters manner set forth above it being understood that each Holder shall be reasonably acceptable required to the Company)make only those representations (if any) as would be customary for a holder of a similar percentage of similar securities. Notwithstanding any other provision of this Section 1.22, if the managing underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated equally among all Holders thereof, including the Initiating Holders, on a percentage basis (as nearly as practicable) equal to the percentage of SM&A Stock requesting registration and permitted by such underwriters to be sold by SM&A shareholders existing immediately prior to the Merger. To the extent Registrable Securities requested to be registered are excluded from the offering pursuant to the immediately preceding sentence, the Holders of such Registrable Securities pro rata based on shall have the number right to one additional demand registration pursuant to this Section 2. SM&A may include in the registration under this Section 2 any other shares of SM&A Stock (including issued and outstanding shares of SM&A Stock as to which the holders thereof have contracted with SM&A for "piggyback" registration rights) so long as the inclusion in such registration of such shares (i) will not, in the opinion of the managing underwriter, interfere with the successful marketing in accordance with the intended method of sale or other disposition of all the shares of Registrable Securities held sought to be registered by all such the Holder or Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities pursuant to this Section 2 and (ii) will not result in the exclusion from such registration of any Registrable Securities. If it is determined as provided above that is a venture capital fund (or other investment fund), partnership or corporationthere will be such interference, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates shares of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons SM&A Stock sought to be included shall be excluded to the extent deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from appropriate by the registrationmanaging underwriter.
(c) Notwithstanding the foregoing, the Company shall not be required SM&A is obligated to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected only two (2) such registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or2 except as provided in Section 2(b).
(iiid) during Notwithstanding the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 belowforegoing, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company SM&A shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors SM&A stating that in the good faith judgment of the Board of Directors of the CompanySM&A, it would be seriously detrimental to the Company SM&A and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company SM&A shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided, provided however, that such SM&A may not utilize this right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company period.
(e) SM&A shall not register any be required to prepare and file a registration statement pursuant to this Section 2 which would become effective within one hundred eighty (180) days following the effective date of a registration statement filed by SM&A with the SEC pertaining to an underwritten public offering of securities for cash for the account of itself or any other stockholder, SM&A if the Initiating Holders' request for registration is received by SM&A subsequent to such time as SM&A in good faith gives written notice to the holders of Registrable Stock that SM&A is commencing to prepare a registration statement and SM&A is actively employing in good faith all reasonable efforts to cause such registration statement to become effective. A registration requested pursuant to this Section 2 shall not register any securities that are not Registrable Securities for the account of any Holder, during be deemed to have been effected until such ninety (90) day period (other than time as a registration relating solely to statement with respect thereto has become effective in compliance with the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 provisions of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Steven Myers & Associates Inc), Registration Rights Agreement (Sm&a Corp)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial OfferingOffering or a Direct Listing, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price price, net of Selling Expenses, of at least $10,000,00025,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded. To facilitate the allocation of shares in accordance with the above provisions, including securities that are not the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. Any Registrable Securities held by Holdersexcluded or withdrawn from such underwriting shall be withdrawn from the registration. For purposes of this Section 1.2(b), any selling Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership partnership, limited liability company or corporation, the affiliated venture capital funds (or other investment funds), partners, members, retired partners partners, retired members and stockholders that are Affiliates stockholder of such Holder, or the estates and family members of any such partners and partners, members, retired partners partners, retired members, stockholders and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder”. Any ,” and any pro rata reduction with respect to such “selling Holders” shall be based upon the aggregate amount of Registrable Securities excluded or withdrawn from owned by all such underwriting shall be withdrawn from the registrationrelated entities and individuals.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, Securities or a registration in which the only Class A Common Stock being registered is Class A Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Figma, Inc.), Investors’ Rights Agreement (Figma, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement January 31, 2023 or (ii) six (6) months after following the effective date of the Initial OfferingIPO, a written request from the Initiating Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with which would have an anticipated aggregate offering price of at least not less than $10,000,000, then the Company shall, shall within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2(a) and the Company shall include such information in the written notice referred to in Section 1.2(a). The underwriter will be selected by the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated allocated, first, to the Initiating Holders of such Registrable Securities and each Investor that participated in the underwriting as a Holder on a pro rata basis based on the total number of Registrable Securities held by the Initiating Holders and participating Investors; and second, to the other Holders on a pro rata basis among all such Holders (including the Initiating other Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s President and/or Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously materially detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further that period.
(d) In addition, the Company shall not register be obligated to effect, or to take any securities action to effect, any registration pursuant to this Section 1.2:
(i) after the Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective;
(ii) during the six-month period following the effective date of the registration statement pertaining to an IPO;
(iii) if, within thirty (30) days of a registration request by the Initiating Holders, the Company gives notice to the Holders of its intent to file or confidentially submit a registration statement for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such an IPO within ninety (90) day period days; or
(other than a registration relating solely iv) if the Initiating Holders propose to the sale dispose of securities shares of participants in a Company stock plan, a registration relating Registrable Securities that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 1.10 below.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (IDEAYA Biosciences, Inc.), Investors’ Rights Agreement (Ideaya Biosciences, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement December 9, 2013 or (ii) six one hundred eighty (6180) months days after the effective date of the Initial Offeringfirst registration statement for a public offering of securities of the Company (other than a registration statement relating solely to employee benefit or similar plans or a registration statement relating to a Rule 145 transaction), a written request from the Holders of thirty at least forty percent (3040%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file effect a registration statement under the Securities Act covering with respect to at least a majority of the registration of Registrable Securities with an anticipated then outstanding and having aggregate offering price proceeds (net of at least underwriting discounts and commissions) in excess $10,000,000, then the Company shall, within twenty shall (20i) days of the receipt thereof, give written notice of such request to all Holders, Holders within ten (10) calendar days of the date such request is given and subject to the limitations of this Section 1.2, (ii) use all commercially reasonable its best efforts to effect, effect as soon as practicable, practicable (and in any event within sixty (60) calendar days of the date such request is given) the registration under the Securities Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) calendar days of the mailing of date the Company’s notice pursuant referred to in this Section subsection 1.2(a)) is given.
(b) If the Holders initiating the registration request hereunder (the “Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders electing to include shares in the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (underwriting, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities requested by each such Holder to be excluded from included in such underwriting; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities (including those to be sold for the Company’s account) are first excluded, including securities that are not Registrable Securities held by Holdersentirely excluded from the underwriting. For purposes of this Section 1.2(b)the preceding parenthetical concerning apportionment, for any selling stockholder which is a Holder of Registrable Securities that and which is a venture capital fund (or other investment fund)partnership, partnership limited liability company or corporation, the venture capital funds partners (or other investment fundsretired partners), partners, members (or retired partners members) and stockholders that are Affiliates of such Holderselling stockholder, or the estates and family members of any such partners and (retired partners partners), members (or retired members) or stockholders and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from selling stockholder” and any pro rata reduction with respect to such underwriting “selling stockholder” shall be withdrawn from based upon the registrationaggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling stockholder” as defined in this sentence.
(c) Notwithstanding the foregoing, if the Company shall furnish to the Holders requesting a registration pursuant to this Section 1.2, a certificate signed by the Company’s President stating that in the good faith judgment of the Company’s Board of Directors, such registration would be seriously detrimental to the Company and its stockholders and that it is, therefore, essential to defer taking action with respect to such registration, the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) calendar days after the date the request of the Initiating Holders is given; provided, however, that the Company may not utilize this right or the right set forth in Section 1.12(c) more than once in any twelve (12) month period; and provided, further, that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period other than a registration relating solely to employee benefit or similar plans, or a registration relating to a Rule 145 transaction.
(d) In addition, the Company shall not be required obligated to effect a effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) after the Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective and have remained effective for at least the period of time described in Section 1.4(a);
(ii) during the period starting with the date thirty (30) calendar days prior to the Company’s good faith estimate of the date of filing of, and ending on a date ninety (90) calendar days after the effective date of, any registration statement pertaining to a public offering of securities for the Company’s account; provided that the Company is actively employing its best efforts to cause such registration statement to be effective;
(iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.12; or
(iv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Chegg, Inc), Investors’ Rights Agreement (Chegg, Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty greater than forty percent (3040%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with that would have an anticipated aggregate offering price price, net of underwriting discounts and commissions, of at least $10,000,000, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), cause a registration statement covering the requested Registrable Securities to be filed within sixty (60) days of receipt of such request and thereafter use all commercially reasonable its best efforts to effect, effect as soon as practicable, the registration under the Securities Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)4.4.
(b) If the Holders initiating the registration request hereunder (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further that period.
(d) In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 1.2:
(i) After the account Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective and, subject to Section 1.5(a), all shares registered thereunder have been sold;
(ii) During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of itself or any other stockholderthe date of filing of, and shall not register any securities that are not Registrable Securities for ending on a date one hundred eighty (180) days after the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planeffective date of, a registration relating subject to Section 1.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 1.4 below.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Calix Networks Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial OfferingOffering or a Direct Listing, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.22.1, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00020,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.22.1, and the Company shall include such information in the written notice referred to in Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities then held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.22.1, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 2.2 below, provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected or remain effective at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once in any twelve (12) month period period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety one hundred twenty (90120) day period (other than a registration relating solely to the sale an Excluded Registration).
(d) For purposes of securities of participants in a Company stock planSubsection 2.1(c)(ii), a registration relating to shall not be counted as “effected” if, as a corporate reorganization or transaction under Rule 145 result of an exercise of the Actunderwriter’s cutback provisions in Subsection 2.1(b), a registration on any form fewer than twenty-five percent (25%) of the total number of Registrable Securities that does not include substantially the same information as would be required Holders have requested to be included in a such registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)actually included.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (BillionToOne, Inc.), Investors’ Rights Agreement (BillionToOne, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.21.3, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement February 16, 2014, or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.21.3, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.21.3, use all commercially reasonable its best efforts to effectfile, as soon as practicable, and in any event within ninety (90) days of the receipt of such request, a registration statement under the Act of covering all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a1.3(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.3 and the Company shall include such information in the written notice referred to in Section 1.2(a1.3(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority two-thirds in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.21.3, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated as follows: first, to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders)) and second, to the other securities to be included in such registration. In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.21.3:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or;
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.21.3, and such registrations have been declared or ordered effective; or;
(iii) during the period starting with the date sixty ninety (6090) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date ninety (90) days after the effective date of, a registration subject to Section 1.4 hereof, unless such offering is the Initial Offering, in which case, ending on a date one hundred eighty (180) days following after the effective date of a Company-initiated such registration subject to Section 1.3 below1.4, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; oreffective and provided, in the case of a public offering other than the Initial Offering, that the Initiating Holders were permitted to register such shares as requested to be registered pursuant to Section 1.4 hereof without reduction by the underwriter thereof;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to Section 1.4 1.5 hereof; or
(v) if the Company shall furnish to Holders within thirty (30) days after requesting a registration statement pursuant to this Section 1.2 1.3, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Inogen Inc), Investors’ Rights Agreement (Inogen Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive receives at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, IPO registration statement a written request from the Holders of thirty percent (30%) or more at least a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000US$10,000,000 of Registrable Securities, then the Company shall, within twenty (20) 10 days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 2(b), use all commercially reasonable its best efforts to effect, file as soon as practicable, and in any event within 90 days of the receipt of such request, a registration statement under the Securities Act of covering all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) 10 days of the mailing of such notice by the Company’s notice pursuant to this Section 1.2(a).
(b) If the Holders initiating the registration request hereunder (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2 and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 2(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.22, if the underwriter advises the Initiating Holders and the Company in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all participating Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities owned by each participating Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, entirely excluded from the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”underwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoingIn addition, the Company shall not be required obligated to effect a effect, or to take any action to effect, any registration pursuant to this Section 1.22:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, 2 and such registrations have been declared or ordered effective; or;
(ii) if the Company has effected a registration pursuant to this Section 2 within the preceding 12 months, and such registration has been declared or ordered effective;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below3, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.4 hereof4 below; or
(v) if the Company shall furnish furnishes to Holders requesting a registration statement pursuant to this Section 1.2 2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors CEO stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, time in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 60 days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once twice in any twelve (12) 12 month period period; and provided further that the Company shall not register any securities for the its own account or that of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, shareholder during such ninety (90) 60 day period (other than pursuant to a registration relating solely to the sale of securities to employees of participants in the Company or a Company stock plan, a registration relating subsidiary pursuant to a corporate reorganization stock option, stock purchase or transaction under Rule 145 of the Act, similar plan; a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, ; or a registration in which the only Common Stock Ordinary Shares being registered is Common Stock are Ordinary Shares issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Registration Rights Agreement (Oxford Immunotec Global PLC), Registration Rights Agreement (Oxford Immunotec Global PLC)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement April 1, 2015 or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders holding a majority of Registrable Securities to be registered, and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to the CompanyInitiating Holders holding a majority of the Registrable Securities to be registered). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not . Any Registrable Securities held by Holdersexcluded or withdrawn from such underwriting shall be withdrawn from the registration. For purposes of the provisions of this Section 1.2(b)paragraph concerning apportionment, for any selling securityholder that is a Holder of Registrable Securities and that is a venture capital fund (or other investment fund), partnership or corporation, the affiliated venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons persons, shall be deemed to be a single “selling Holder”. Any ,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities excluded or withdrawn from owned by all such underwriting shall be withdrawn from the registrationrelated entities and individuals.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or;
(ii) during the one hundred eighty (180) day period commencing with the effective date of the Initial Offering;
(iii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or;
(iiiiv) during upon written notice to the period starting with Initiating Holders within thirty (30) days of receipt of a written request pursuant to Section 1.2(a) that the date Company intends to file a registration statement for an Initial Offering within sixty (60) days prior to the Company’s good faith estimate of following the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the such Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; ornotice;
(ivv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(vvi) if the Company shall furnish to the Initiating Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such the registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month 12)-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety one hundred twenty (90120) day period, or such shorter period of deferral of such filing (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Karyopharm Therapeutics Inc.), Investors’ Rights Agreement (Karyopharm Therapeutics Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five three (53) years after the date of this Agreement or or
(ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).to
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Marketo, Inc.), Investors’ Rights Agreement (Marketo, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five three (53) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request (the “Initial Request”) from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company shall, within twenty (20) days of the receipt thereofof the Initial Request, give written notice of such request the Initial Request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, file as soon as practicable, the and in any event within 90 days, a registration statement under the Act of all covering the Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of after the mailing of the Company’s notice pursuant to this Section 1.2(a), and to use best efforts to cause such registration statement to become effective within one hundred twenty days of the Initial Request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to among the participating Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any ; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, entirely excluded from the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”underwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i1) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii2) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective, provided, that either (i) the distributions described in such registration statements have been completed or (ii) the registration statements continue to remain in effect and there are no “stop orders” in effect with respect to such registration statements; or
(iii3) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 belowhereof, provided the Company delivers notice to the Holders within thirty days of any request for registration under this Section 1.2, and ending on a date ninety days after such registration or in the case of the Initial Offering ending on a date one hundred eighty days after the effective date of such Initial Offering, provided that the Company is actively employing in good faith all commercially reasonable best efforts to cause such registration statement to become effective; or
(iv4) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v5) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) one hundred twenty days after receipt of the request of the Initiating HoldersInitial Request, provided that such right to delay any request of the Holders under this Section 1 shall be exercised by the Company not more than once in any twelve (12) twelve-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Control4 Corp), Investors’ Rights Agreement (Control4 Corp)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five three (53) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty forty percent (3040%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of at least twenty percent (20%) of the Registrable Securities with an outstanding (or a lesser percent if the anticipated aggregate offering price of at least would exceed $10,000,00015,000,000), then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by the holders of a majority in interest of the Registrable Securities held by the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to the Companyholders of a majority of the Registrable Securities held by Initiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not . Any Registrable Securities held by Holdersexcluded or withdrawn from such underwriting shall be withdrawn from the registration. For purposes of this Section 1.2(b), any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund (or other investment fund), partnership or corporation, the affiliated venture capital funds (or other investment funds), members, retired members, partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such members, retired members, partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder”. Any ,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities excluded or withdrawn from owned by all such underwriting related entities and individuals. For this purpose, the ▇. ▇▇▇▇ Price Investors shall be withdrawn from deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the registrationaggregate amount of Registrable Securities owned by all entities and individuals included in such “selling Holder,” as defined in this sentence.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or;
(ii) after the Company has effected two one (21) registrations registration pursuant to this Section 1.2, and such registrations have registration has been declared or ordered effective; or;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month 12)-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety one hundred twenty (90120) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Coupa Software Inc), Investors’ Rights Agreement (Coupa Software Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.22.02, if the Company shall receive receive, at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after have elapsed following the effective date of the Initial OfferingIPO, a written request from the Holders of thirty percent (30%) or more Shareholders holding at least a majority of the Registrable Securities that are then outstanding and held by the Shareholders (for purposes of this Section 1.22.02, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000US$50,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.02, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a2.02(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2.02(a) and the Company shall include such information in the written notice referred to in Section 1.2(a2.02(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by such Holder and a majority in interest of the Initiating Holders and such HolderHolders) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.22.02, if the underwriter underwriter(s) advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all the Holders of Registrable Securities that would otherwise be underwritten pursuant heretothereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.02:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.22.02, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date that is sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a the date that is one hundred and eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 2.03 below, ; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form F-3 or Form S-3 pursuant to Section 1.4 2.04 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.02 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Board, stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once in any twelve (12) month period 12)-month period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, shareholder during such ninety (90) day 90)-day period (other than a registration relating solely to the sale of securities of participants in a Company stock share plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock Ordinary Shares being registered is Common Stock are Ordinary Shares issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Registration Rights Agreement (Nu Holdings Ltd.), Registration Rights Agreement (Nu Holdings Ltd.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement January 31, 2009 or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty thirty-five percent (3035%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyCompany (the “Board”), it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)12)-month period.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Synacor, Inc.), Investors’ Rights Agreement (Synacor, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders holding beneficial interest of thirty not less than forty percent (3040%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an anticipated aggregate offering price of (1) at any time that is at least twelve (12) months after the effective date of the Trust Preferred Securities Purchase Agreement, (2) once per twelve (12) month period following the twelve (12) month anniversary of the effective date of the Trust Preferred Securities Purchase Agreement and (3) any time after the Company’s market capitalization exceeds $10,000,000500 million, then the Company shall, :
(i) within twenty fifteen (2015) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations Holders of this Section 1.2, Registrable Securities; and
(ii) use all commercially reasonable efforts to effect, as soon as practicablepracticable after receipt of such request, the registration under the Securities Act of all Registrable Securities that the Initiating Holders and other Holders request to be registered (and, in the case of a written request received by pursuant to Section 2(a)(3) above, file a “shelf” registration pursuant to Rule 415 under the Company Securities Act) subject to the limitations of Section 2(b), within twenty thirty (2030) days of the mailing of such notice by the Company’s notice pursuant to Company in accordance with this Section 1.2(a2(a).;
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2(a) and the Company shall include such information in the written notice referred to in Section 1.2(a2(a). The underwriter will be jointly selected by the Initiating Holders and the Company. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Section 4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority underwriting. If any Holder disapproves of the Registrable Securities held terms of the underwriting, such Holder may elect to withdraw therefrom by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable written notice to the CompanyCompany and the managing underwriter(s). Notwithstanding any other provision of this Section 1.22, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder on a fully-diluted basis; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish a notice to the Holders requesting a registration statement pursuant to this Section 2, a certificate signed by the Chairman, Chief Executive Officer and President of the Company stating that in the good faith judgment of the Board of Directors, it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer taking action with respect to such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve-month period, and provided further, that the Company shall not register any shares for its own account during such one hundred twenty (120) day period.
(d) In addition, the Company shall not be required obligated to effect a effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) 2 during the period starting with the date sixty (60) days prior to the Company’s 's good faith estimate of the date of the filing of of, and ending on a date one hundred eighty twenty (180120) days following after the effective date of of, a Company-initiated registration subject to Section 1.3 below3 hereof; provided, provided however, that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Registration Rights Agreement (Hill Vernon W Ii), Registration Rights Agreement (Republic First Bancorp Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offeringfirst registration statement for an underwritten public offering of securities of the Company (other than an Excluded Registration), a written request from either the Required Series D, E, F and G Holders of thirty percent (30%a “Series D, E, F and G Demand Registration”), the Required Series C Holders (a “Series C Demand Registration”) or more of the Registrable Securities then outstanding Required Other Holders (for purposes of this Section 1.2, the an “Initiating HoldersOther Shareholder Demand Registration”) that the Company file a registration statement under the Securities Act covering the registration of at least such number of the Registrable Securities with having an anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company shall, within twenty (20) 10 days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 2.2(b), use all commercially reasonable its best efforts to effect, file as soon as practicable, and in any event within 90 days of the receipt of such request, a registration statement under the Securities Act of covering all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) 20 days of the mailing of such notice by the Company’s notice pursuant to this Section 1.2(a).
(b) If the Holders initiating the registration request under Section 2.2(a) (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2.2 and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 2.2(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include his or its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 2.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders holders of capital stock for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right (collectively with the similar right under subsection 2.4(b)) more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.2:
(i) (A) if the Initiating Holders are holders of Series D Registrable Securities, Series E Registrable Securities, Series F Registrable Securities or Series G Registrable Securities and the Company has either (1) effected one (1) Series D, E, F and G Demand Registration in the prior twelve (12) months, or (2) previously effected two (2) Series D, E, F and G Demand Registrations in the aggregate, and such registrations have been declared or ordered effective and at least 90% of the Series D Registrable Securities, Series E Registrable Securities, Series F Registrable Securities and Series G Registrable Securities requested to be included therein were able to be registered and sold thereunder, (B) if the Initiating Holders are holders of Series C Registrable Securities and the Company has either (1) effected one (1) Series C Demand Registration in the prior twelve (12) months, or (2) previously effected two (2) Series C Demand Registrations in the aggregate, and such registrations have been declared or ordered effective and at least 90% of the Series C Registrable Securities requested to be included therein were able to be registered and sold thereunder or (C) if the Initiating Holders are holders of Other Registrable Securities and the Company has either (1) effected one (1) Other Shareholders Demand Registration in the prior twelve (12) months, or (2) previously effected two (2) Other Shareholders Demand Registrations in the aggregate, and such registrations have been declared or ordered effective and at least 90% of the Other Registrable Securities requested to be included therein were able to be registered and sold thereunder;
(ii) if the Company has, within the 12-month period preceding the date of such request, already effected one registration for the Holders pursuant to this Section 2.2, and such registration has been declared or ordered effective and at least 90% of the Registrable Securities requested to be included therein were able to be registered and sold thereunder;
(iii) during the period starting with the date 90 days prior to the Company’s good faith estimate of the date of filing of, and ending on a date 90 days after the effective date of, a registration subject to Section 2.3; provided further that the Company shall not register any securities for is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(iv) if the account Initiating Holders propose to dispose of itself or any other stockholder, and shall not register any securities that are not shares of Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 request made pursuant to Section 2.4.
(e) If the total amount of securities, including Registrable Securities, requested by holders of capital stock and the Act, a registration on any form that does not include substantially the same information as would be required Company to be included in a an underwritten Series D, E, F and G Demand Registration, Series C Demand Registration, Other Shareholder Demand Registration or registration statement covering requested under Section 2.4 exceeds the sale amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, or a registration in which the only Common underwriters determine in their sole discretion will not jeopardize the success of the offering, and the Company will include in such registration (i) first, the number of Registrable Securities (apportioned pro rata among the selling Holders according to the total amount of securities entitled to be included therein owned by each selling Holder or in such other proportions as shall mutually be agreed to by such selling Holders), but in no event shall any Other Registrable Securities be included until Holders of Series G Registrable Securities, Series F Registrable Securities, Series E Registrable Securities, Series D Registrable Securities and Series C Registrable Securities that have requested to include Registrable Securities therein shall have received (or will receive in such registration) an amount equal to the original purchase price of their shares of Series G Preferred Stock, Series F Preferred Stock, Series E Preferred Stock, Series D Preferred Stock being registered and Series C Preferred Stock, respectively, (ii) second, the securities, if any, the Company proposes to sell therein and (iii) third, any other securities of the Company requested to be included in such registration. For purposes of the preceding parenthetical concerning apportionment, for any selling Holder which is Common Stock issuable a partnership or corporation, the partners, retired partners, holders of capital stock of such Holder, the estates and family members of any such partners and retired partners, any Affiliated Fund (as defined below) and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro-rata reduction with respect to such “selling security holder” shall be based upon conversion the aggregate amount of debt securities that are also being registered)shares carrying registration rights owned by all entities and individuals included in such “selling Holder,” as defined in this sentence.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (MINDBODY, Inc.), Investors’ Rights Agreement (MINDBODY, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier twelve (12) month anniversary of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Public Offering, a written request from the Holders of thirty percent (30%) a majority or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of at least twenty-five percent (25%) of the Registrable Securities with an then outstanding or a lesser percent if the anticipated aggregate offering price price, net of at least $10,000,000underwriting discounts and commissions, would exceed Twenty Million Dollars (US$20,000,000), then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2.1 and the Company shall include such information in the written notice referred to in this Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis (as nearly as practicable) based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoingIn addition, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) after the Company has effected two (2) registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective;
(ii) If the Company has effected a registration pursuant to this Section 2.1 within the preceding twelve (12) months, and such registration has been declared or ordered effective;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred eighty (180) days following the effective date of, a Company-initiated registration subject to Section 2.2, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 2.3;
(v) if the Company shall furnish to Holders requesting a registration pursuant to this Section 2.1, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12)-month period and provided further, that the Company shall not register any other of its shares during such one hundred twenty (120) day period; or
(vi) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Arcadia Biosciences, Inc.), Investors’ Rights Agreement (Arcadia Biosciences, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date third anniversary of the Effective Date of this Agreement Agreement, or (ii) six (6) months after the effective date of the Initial Offeringfirst registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders of thirty percent (30%) or more than 5% of the Registrable Securities then outstanding (for purposes provided the anticipated aggregate offering price, net of this Section 1.2underwriting discounts and commissions, the “Initiating Holders”would exceed $5,000,000) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Act, then the Company shall, within twenty (20) 20 days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially reasonable efforts to effect, file as soon as practicable, and in any event within 90 days of the receipt of such request, a registration statement under the Securities Act of covering all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a)registered.
(b) If the Holders initiating the registration request hereunder (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by 60% in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority 60% in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all participating Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each participating Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register be obligated to effect, or to take any securities action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected two registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective (a registration will count for the account of itself or any other stockholder, and shall not register any securities that are not this purpose only if (i) all Registrable Securities for requested to be registered are registered and (ii) it is closed, or withdrawn at the account request of any Holder, during such ninety (90) day period the Investors (other than as a registration relating solely result of a material adverse change to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 Company));
(ii) During the period commencing on the effective date of the Act, registration statement for the initial public offering of the Company’s securities and ending on a date 180 days after the effective date of such registration; or
(iii) If the Company delivers notice to the Holders within 30 days of the Company’s receipt of the Initiating Holders’ registration on any form that does not include substantially request declaring the same information as would be required Company’s intention to be included in file within 60 days a registration statement covering for the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Company’s initial public offering.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Aclaris Therapeutics, Inc.), Investors’ Rights Agreement (Aclaris Therapeutics, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at At any time after the earlier of (i) five (5) years after the date of this Agreement December 31, 1999 or (ii) the date six (6) months after the effective closing date of the Initial Offeringfirst registered public offering of securities of the Company, if the Company shall receive a written request from the Holders any Holder(s) of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of and entitled to registration rights under this Section 1.2, 1 (the “"Initiating Holders”") that the Company file a effect the registration statement under the 1933 Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty five (205) business days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, effect such a registration as soon as practicable, practicable and in any event to file within sixty (60) days of the receipt of such request a registration statement under the 1933 Act of covering all the Registrable Securities that which the Holders shall in writing request to be registered in a written request received by the Company (within twenty (20) days of the mailing receipt of the Company’s notice given by the Company pursuant to this Section 1.2(a)) to be included in such registration and to use its best efforts to have such registration statement become effective; provided, however, that the Company will not be required to effect the registration of Registrable Securities unless either (i) at least an aggregate of 1,000,000 shares of Registrable Securities (as adjusted to reflect stock splits, stock combinations, stock dividends and recapitalizations) are offered or (ii) Registrable Securities are offered at a proposed offering price net of underwriting commissions of not less than $3,000,000.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a)1.2. In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Section 1.4(d)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those the Company and reasonably acceptable to a majority in interest of the Initiating Holders; provided, however, that if the underwriter is not reasonably acceptable to a majority in interest of the Initiating Holders, such Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which may select an underwriter or underwriters which shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if if, in the case of a registration requested pursuant to Section 1.2(a), the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise the Company and all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and all the securities other than Registrable Securities sought to be included in the underwriting shall first be excluded. To the extent that further limitation is required, the number of shares Registrable Securities that may be included in the underwriting shall shall, subject to the last sentence of this paragraph, be allocated to the Holders of such Registrable Securities pro rata based on among all Holders thereof desiring to participate in such underwriting (according to the number of Registrable Securities then held by all each such Holders (including the Initiating HoldersHolder). In no event shall any No Registrable Securities requested by any Holder to be included in a registration pursuant to Section 1.2(a) shall be excluded from such the underwriting unless all securities other securities than Registrable Securities are first excluded. If the registration pursuant to this Section 1.2(a) requires exclusion of securities requested to be registered and is subsequent to the Company's first registered public offering of securities, including securities that are not then the Company shall include in such registration, in preference to other Registrable Securities, the Registrable Securities held by Holders. For purposes which represent shares of Common Stock issued upon conversion of Class C Shares, up to an amount not to exceed each such requesting Holder's initial aggregate purchase price for the Class C Shares as set forth on Exhibit B hereto (the "Preferential Amount"); and any amounts so registered shall reduce the Preferential Amount and when the Preferential Amount equals zero, this last sentence of Section 1.2(b) shall be of no further force or effect.
(c) The Company is obligated to effect only three (3) registrations pursuant to Section 1.2(a); provided, any Holder of Registrable Securities however, that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons no registration pursuant to Section 1.2(a) shall be deemed to be a single “Holder”. Any registration for any purpose of this sentence if (i) the number of Registrable Securities excluded included in the underwriting does not equal or withdrawn from exceed fifty percent (50%) of the number of Registrable Securities proposed by the Holders to be distributed through such underwriting and (ii) the Holders pay the expenses of such registration in accordance with Section 1.6; and provided, further, that no registration of Registrable Securities which shall not have become and remained effective in accordance with Section 1.4 shall be withdrawn from the registrationdeemed to be a registration for any purpose of this sentence.
(cd) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to foregoing provisions of this Section 1.2:
(i) , in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless event that the Company is already subject requested to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations file any registration statement pursuant to this Section 1.2, and (i) the Company shall not be obligated to effect the filing of such registrations have been declared or ordered effective; orregistration statement:
(iiiA) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a any other registration statement pertaining to an underwritten public offering of securities for the account of the Company or any Holder;
(B) during the six (6) months following the effective date of any other registration statement which the Company has filed pursuant to the request under Section 1.2(a);
(C) if, in the case of the initial public offering of the Company-initiated registration subject 's securities, the Company and the Initiating Holders are unable to obtain the commitment of the underwriter selected pursuant to Section 1.3 below, provided that 1.2(b) to underwrite the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; oroffering on a firm commitment basis;
(ivD) if the Initiating Holders propose to dispose of shares of Registrable Securities that all of which may be immediately registered on Form S-3 pursuant to Section 1.4 hereof1.11 below; or
(vE) for a period of up to sixty (60) days after the date of a request for registration pursuant to this Section 1.2 if at the time of such request (1) the Company is engaged, or has fixed plans to engage, within sixty (60) days of the time of such request, in a firm commitment underwritten public offering of Common Stock in which the holders of Registrable Securities include Registrable Securities pursuant to Section 1.3; or (2) the Company is currently engaged in a self-tender or exchange offer and the filing of a registration statement would cause a violation of the Securities and Exchange Act of 1934, as amended (the "1934 Act"); or (ii) if the Company shall furnish to the Holders requesting a such registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the CompanyDirectors, it would not be seriously detrimental to in the best interests of the Company and its stockholders generally for such registration statement to be effected at such timefiled, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the relevant Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize the right set forth in this Section 1.2(d)(ii) more than once in any twelve (12) month period and provided further that period.
(e) Each registration requested pursuant to Section 1.2(a) shall be effected by the Company shall filing of a registration statement on Form S-1 (or if such form is not register any securities for the account of itself or available, any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include which includes substantially the same information (other than information which is incorporated by reference) as would be required to be included in a registration statement covering on such form as currently constituted), unless the sale use of a different form is consented to by Initiating Holders holding a majority of the Registrable SecuritiesSecurities held by all Initiating Holders or unless another form would be equally effective, or a registration in which as determined by the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Initiating Holders at their sole discretion.
Appears in 2 contracts
Sources: Registration Rights Agreement (Maker Communications Inc), Registration Rights Agreement (Maker Communications Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Rubrik, Inc.), Investors’ Rights Agreement (Rubrik, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00025,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by at least a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding at a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Avinger Inc), Investors’ Rights Agreement (Avinger Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five four (54) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Public Offering, a written request from the Holders of thirty at least twenty-five percent (3025%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of at least twenty-five percent (25%) of the then outstanding Registrable Securities with an Securities, or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $10,000,0005,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis (as nearly as practicable) based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In , provided that no event shall any Registrable Securities shall be excluded from such underwriting unless and until all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”Company have been excluded. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoingIn addition, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or;
(ii) If the Company has effected a registration pursuant to this Section 1.2 within the preceding twelve (12) months, and such registration has been declared or ordered effective;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below1.3, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or1.4;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and period, provided further further, that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such one ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered); or
(vi) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Ardelyx, Inc.), Investors’ Rights Agreement (Ardelyx, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of (i) five (5) years after [***] of the date of this Agreement Agreement; or (ii) six (6) months after [***] following the effective date of the Initial Offering, a written request from the any Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.22.1, the “Initiating Holders”) ), including Neuberger or Temasek for clause (i), that the Company file a two (2) registration statement statements under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000[***], then the Company shall, within twenty (20) days [***] of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days [***] of the mailing of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.22.1, and the Company shall include such information in the written notice referred to in Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest [***] of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding [***] of the CompanyRegistrable Securities then held by all Initiating Holders). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) [***] registrations pursuant to this Section 1.22.1, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days [***] prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days [***] following the effective date of a Company-Company initiated registration subject to Section 1.3 2.2 below, provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days [***] after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once [once] in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)[***] period.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of at least thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.22.1, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00020,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.22.1, and the Company shall include such information in the written notice referred to in Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities then held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.22.1, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 2.2 below, provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once in any twelve (12) month period period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (RAPT Therapeutics, Inc.), Investors’ Rights Agreement (RAPT Therapeutics, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.23.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement August 15, 2008 or (ii) six twelve (612) months after the effective date of the Company’s first firm commitment underwritten public offering of its Common Stock (the “Initial Offering”), a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.23.2, use all commercially reasonable best efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a3.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 3.2 and the Company shall include such information in the written notice referred to in Section 1.2(a3.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.23.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.23.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Securities Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.23.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 3.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 3.6 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 3.2, a certificate signed by the Company’s Chief Executive Officer President or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) twelve-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Fortinet Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty at least fifty percent (3050%) or more of the Registrable Securities then outstanding Series B Preferred Stock (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least more than $10,000,00020,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a)) to the Holders in accordance with Section 3.5.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty ninety (6090) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)12)-month period.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Veeva Systems Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) at least six (6) months after the effective date of the Initial Offeringfirst registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes held by the Preferred Holders, on an as-converted basis and including any shares of this Section 1.2Common Stock held by the Preferred Holders resulting from conversion of their respective Preferred Stock, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersPreferred Holders and shall, and subject to the limitations of this Section 1.2subsection 2.2(b), use all commercially reasonable efforts to effect, effect as soon as practicable, and in any event within 90 days of the receipt of such request, the registration under the Securities Act of all Registrable Securities that which the Preferred Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant Company in accordance with the terms hereof; provided, however, that the Company shall not be obligated to this Section 1.2(a)effect such registration if the Preferred Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (before underwriting discounts, commissions and fees) of less than $5,000,000.
(b) If the Preferred Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2.2 and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 2.2(a). The underwriter will be selected by the Company subject to the prior written consent of a majority of the then outstanding Registrable Securities proposed to be included in such registration, which consent shall not be unreasonably withheld; provided, however, that no such consent shall be required if the Company selects a nationally recognized underwriter in the United States with demonstrable, pharmaceutical and/or biotechnology industry-specific expertise and experience. In such event event, the right of any Preferred Holder to include its Registrable Securities in such registration shall be conditioned upon such Preferred Holder’s 's participation in such underwriting and the inclusion of such Preferred Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) Preferred Holder to the extent provided herein. All Preferred Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 2.5(e)) enter into an underwriting agreement in customary form (including without limitation the indemnities from the Company as set forth in Section 2.10) with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.22.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on or the exclusion of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Preferred Holders of Registrable Securities that which would otherwise be participate in the underwritten offering pursuant hereto, and and, in the case of a limitation, of the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by among all such Preferred Holders (as applicable), including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Preferred Holder (as applicable); provided, however, that the shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced in number or completely excluded unless all other securities are first excludedentirely excluded from the underwriting. No such reduction shall reduce the securities being offered by the Company for its own account to be included in the registration and underwriting, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder and in no event shall the amount of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall selling Preferred Holders included in the registration be deemed to be a single “Holder”. Any reduced below twenty-five (25%) of the total amount of securities included in such registration, unless such offering is the initial public offering of the Company's Common Stock under the Securities Act, in which event any or all of the Registrable Securities of the Preferred Holders may be excluded or withdrawn from such underwriting shall be withdrawn from the registrationin accordance with this Section 2.2(b).
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to the Initiating Holders requesting a registration statement pursuant to this Section 1.2 2.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected filed at such timetime and it is therefore essential to defer the filing of such registration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve month period.
(12d) month period and provided further that In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 2.2:
(i) After the account Company has effected two (2) registrations pursuant to this Section 2.2 and such registrations have been declared or ordered effective (excluding any such registration in which the amount of itself or any other stockholder, and shall not register any securities that are not the Registrable Securities of the selling Preferred Holders included therein shall have been reduced by twenty-five percent (25%) or more to accommodate the inclusion of the securities being offered by the Company pursuant to Section 2.2(b)), or within six (6) months of the effective date of another registration;
(ii) During the period of one hundred eighty (180) days following the effective date of a registration subject to Section 2.3 hereof;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be currently registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; provided, however, that if the Company so refuses to effect a registration by the Preferred Holders pursuant to this Section 2.2(d)(iii), they shall be entitled to an additional registration pursuant to Section 2.4 for each such registration so refused; or
(iv) If the account Company delivers notice to the Initiating Holders within thirty (30) days of any Holder, during such a registration request pursuant to this Section 2.2 stating the Company's intent to file a registration statement for a public offering within ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 days of the Actdate of such notice, a provided that the Company is actively employing in good faith all reasonable efforts to cause such registration on any form that does not include substantially the same information as would be required statement to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)filed and become effective.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Metabasis Therapeutics Inc), Investors' Rights Agreement (Metabasis Therapeutics Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier second anniversary of (i) five (5) years after the date of this Agreement or (ii) six (6) months after and during the effective date Term of this Agreement, at a time when the Initial OfferingShares are listed on a Permitted Exchange, a written request from the Holders of thirty percent (30%) Purchasers or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) their Transferees that the Company file a registration statement under the Securities Act covering the registration of at least fifty percent (50%) of the Registrable Securities with an then outstanding (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $10,000,000), then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all HoldersPurchasers or their Transferees and shall, and subject to the limitations of this Section 1.2subsection 5.1(b), use all commercially reasonable its best efforts to effect, effect as soon as practicable, the registration under the Securities Act of all Registrable Securities that which the Holders Purchasers or their Transferees request to be registered in a written request received by the Company within twenty thirty (2030) days of the mailing of such notice by the Company’s notice pursuant to this Section 1.2(a).
(b) If the Purchasers or their Transferees initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 5.1 and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 5.1(a). In such event event, the right of any Holder Purchaser or Transferee to include its Registrable Securities in such registration shall be conditioned upon such Holder’s Purchaser's or Transferee's participation in such underwriting and the inclusion of such Holder’s Purchaser's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such HolderPurchaser or Transferee) to the extent provided herein. All Holders Initiating Holders, Purchasers and Transferees proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 5.1(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.25.1, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Purchasers or Transferees holding Registrable Securities that which would otherwise be underwritten pursuant heretothereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated in proportion (as nearly as practicable) to the Holders amount of such Registrable Securities pro rata based on of the Company held by each Purchaser or Transferee; provided, however, that the number of shares of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Initiating Holders requesting a registration statement pursuant to this Section 1.2 5.1 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further that period.
(d) In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 5.1:
(i) after the account of itself Company has effected in the aggregate two (2) registrations pursuant to this Section 5.1 and Section 5.3 and such registrations have been declared or any other stockholder, and shall not register any securities that are not Registrable Securities for ordered effective;
(ii) during the account of any Holder, during such period starting with the date ninety (90) day period (other than a registration relating solely days prior to the sale Company's good faith estimate of securities the date of participants in filing of, and ending on a Company stock plandate one hundred eighty (180) days after the effective date of, a registration relating subject to Section 5.2 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 5.3 below.
Appears in 2 contracts
Sources: Shareholders' Agreement (Perry Carl D), Shareholders' Agreement (Us Electricar Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years one year after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more at least 100,000 Shares of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of the entire amount of the Registrable Securities with an anticipated aggregate offering price of at least $10,000,000held by the Initiating Holders, then the Company shall, within twenty (20) 20 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) 20 days of the mailing of the Company’s notice pursuant to this Section 1.2(a). Holders requesting registration of Registrable Securities in response to the Company’s notice given pursuant to this Section 1.2 (a) are herein referred to as “Participating Holders”.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Participating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Participating Holders (which underwriter or underwriters shall be are reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. The Registrable Securities to be excluded or withdrawn shall be determined in the following sequence: (i) securities held by any persons other than the Holders, including persons having a contractual, incidental “piggy back” right to include such securities in the registration statement, (ii) securities sought to be registered by the Company, and (iii) Registrable Securities held by the Holders.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) 2 registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effectiveeffective and remained effective for the period required by section 1.5 (a); or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such timetime as a result of requiring a disclosure that would cause a material adverse affect on any plan or agreement with respect to any financing, acquisition, or other material transaction, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) -month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 2 contracts
Sources: Registration Rights Agreement (China Technology Development Group Corp), Registration Rights Agreement (China Technology Development Group Corp)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement August 30, 2025 or (ii) six (6) months after the effective date of the Initial Offering, a written request from (a) any Institutional Holder or (b) the Holders of thirty at least fifty percent (3050%) or more of the Registrable Securities then outstanding outstanding, excluding for all purposes under clause (b) any Registrable Securities held by a Strategic Investor or a Competitor Transferee (for purposes of this Section 1.22.1, the “Initiating Holders”) ), that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00020,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing sending of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.22.1, and the Company shall include such information in the written notice referred to in Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Companyin accordance with Section 2.1(d). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, unless the Company is already qualified to do business in such jurisdiction or subject to service of process in such jurisdiction and except as may be required under the Act; or;
(ii) after the Company has effected two three (23) registrations pursuant to this Section 1.2, 2.1 and such registrations have been declared or ordered effective; or;
(iii) during the period starting with the date sixty ninety (6090) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 2.2 below, ; provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timeSuspension Notice, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, ; provided that such right and the rights under Sections 2.3(b)(iii), 2.3(d)(i)(1), 2.3(d)(ii) and 2.4 shall be exercised by the Company not more than once in any twelve (12) month period and provided further 12)-month period; provided, further, that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day 90)-day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
(d) The Institutional Holder or Holders of a majority of the Registrable Securities, excluding for this purpose any Registrable Securities held by a Strategic Investor or a Competitor Transferee, as the case may be, initially requesting registration hereunder will have the right to select the underwriter or underwriters in an offering under a registration pursuant to this Section 2.1, which underwriter or underwriters shall be reasonably acceptable to the Company.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Peloton Interactive, Inc.), Investors’ Rights Agreement (Peloton Interactive, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, Company’s initial public offering covering the offer and sale of Common Stock of the Company (the “IPO”) a written request from the Holders of thirty percent (30%) or more at least a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least thirty percent (30%) of the Registrable Securities with an anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company shall, within twenty (20) days of the receipt thereof, shall promptly give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effectsubsections 1.2(b)-(d), as soon as practicable, the use its reasonable best efforts to effect a registration statement under the Securities Act of covering all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) 15 business days of the mailing of such notice by the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All The Company and all Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority underwriting; provided, however, that such agreement shall not provide for indemnification or contribution obligations on the part of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to materially greater than the Company)obligations of the Holders under Section 1.10(b) hereof. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company in good faith that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the maximum number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all participating Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders), in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each participating Holder. In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of excluded from such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”offering. Any Registrable Securities excluded from or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timefiled, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) twelve-month period and provided period; provided, further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) -day period (other than in a Qualified IPO, a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act).
(d) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected two registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date 90 days prior to the Company’s good faith estimate of the date of filing of, and ending on a date 90 days after the effective date of; a registration on subject to Section 1.3 hereof; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; and provided, further that the Company may only delay an offering pursuant to this Section 1.2(d) for a period of not more than 90 days if a filing of a registration statement in connection with such registration is not made during such period and the Company may only exercise this right once in any form that does not include substantially twelve-month period; or
(iii) In any jurisdiction in which the same information as Company would be required to be included qualify to do business or execute a general consent to service of process in a registration statement covering effecting such registration, unless the sale Company is already qualified to do business or subject to service of the Registrable Securities, or a registration process in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)such jurisdiction.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Enphase Energy, Inc.), Investors’ Rights Agreement (Enphase Energy, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Public Offering, a written request from the Holders of thirty twenty-five percent (3025%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable best efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in this Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)Holders. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis (as nearly as practicable) based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In , provided that no event shall any Registrable Securities shall be excluded from such underwriting unless and until all other securities are first of the Company have been excluded, including securities ; and provided further that are not at least 33% of the Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed requested to be a single “Holder”included in such underwriting are in fact so included. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoingIn addition, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) after the Company has effected three (3) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective;
(ii) If the Company has effected a registration pursuant to this Section 1.2 within the preceding twelve (12) months, and such registration has been declared or ordered effective;
(iii) If the Initiating Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration statement, propose to sell Registrable Securities and such other securities (if any) and the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) are less than US$5,000,000;
(iv) during the period starting with the date sixty (60) says prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days following the effective date of, a Company-initiated registration subject to Section 1.3, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(v) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4;
(vi) if the Company shall furnish to Holders requesting a registration pursuant to this Section 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12)-month period and provided further, that the Company shall not register any other of its shares during such ninety (90) days; or
(vii) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (CG Oncology, Inc.), Investors’ Rights Agreement (CG Oncology, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after subsequent to the earlier of of: (i) five (5) years after the date of this Agreement or September 1, 2016 and (ii) six (6) months after following the effective date Company’s first firm commitment underwritten public offering of the Initial Offeringits shares of Common Stock, a written request from the Holders of not less than thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2outstanding, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with having an anticipated aggregate offering price to the public of at least Ten Million Dollars ($10,000,000), then the Company shall, :
(i) within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, ; and
(ii) use all its commercially reasonable efforts to effect, effect as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by registered, subject to the Company within twenty (20) days limitations of the mailing of the Company’s notice pursuant to this Section 1.2(asubsection 1.2(b).
(b) If the Holders initiating the registration request hereunder (the “Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 1.2(a)(i). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company and the Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the Holders amount of such Registrable Securities pro rata based on of the Company owned by each Holder; provided, however, that no Registrable Securities of a Founder or Common Stock of ▇▇▇ shall be included if any Registrable Securities of an Investor are excluded, and provided further that the number of shares of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from included in such underwriting shall not be withdrawn reduced unless all securities other than Registrable Securities are first entirely excluded from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timefiled, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than to exceed ninety (90) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) twelve-month period and provided further further, that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
(d) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date ninety (90) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred and eighty (180) days after the effective date of a registration subject to Section 1.3 hereof; provided that the Company is actively employing in good faith reasonable efforts to cause such registration statement to become effective and the Company delivers notice of such intent to the Initiating Holders within thirty (30) days of the registration request; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.12 below.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (SolarEdge Technologies Inc), Investors’ Rights Agreement (SolarEdge Technologies Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five the three (53) years after the date year anniversary of this Agreement Agreement, or (ii) six the sixth (66th) months after month anniversary of the effective date of the Initial Offering, receive a written request from the Holders of thirty percent (30%) or more at least a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $20,000,000 (a “Qualified Public Offering”)) that the Company file a registration statement under the Securities Act covering the registration offer and sale of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within promptly but not later than twenty (20) days of after the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (and the Company, if applicable) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating the Holders holding of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any , provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting and registration shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, entirely excluded from the venture capital funds (or other investment funds), partners, retired partners underwriting and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. registration; Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i1) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction jurisdiction, and except as may be required under the Securities Act; or
(ii2) upon the expiration of the restrictions on transfer set forth in Section 1.12 following the Initial Offering;
(3) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have registration has been declared or ordered effective; or
(iii4) during the period starting with the date sixty if within thirty (6030) days prior of receipt of a written request from Initiating Holders pursuant to Section 1.2(a), the Company gives notice to the Holders of the Company’s good faith estimate of intention to file a registration statement for the date of the filing of and ending on a date one hundred eighty Company’s Initial Offering within ninety (18090) days following the effective date of a Company-initiated registration subject to Section 1.3 belowdays, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv5) if the Initiating Holders propose to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.4 hereof; or
(v6) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve twelve-month (12) month period period, and provided further provided, further, that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, shareholder during such ninety one hundred twenty (90120) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investor Rights Agreement (RingCentral Inc), Investor Rights Agreement (RingCentral Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders (including the Key Holders), and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).this
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Lemonade, Inc.), Investors’ Rights Agreement (Lemonade, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty twenty-five percent (3025%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, shareholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Okta, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.21.2, if the Company shall receive at any time after following the earlier of (i) five i)five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of following the Initial Offering, a written request from the Holders holders of thirty the Preferred Shares holding more thanfifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders (other than the Initiating Holders), and subject to the limitations of this Section 1.21.2, use all commercially reasonable best efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.21.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Ordinary Shares issued or issuable upon conversion of Preferred Shares held by all such Holders, provided, however, that in any event the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities holders of Series B-1 Preferred Sharesto be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(cb) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.21.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.21.2, and such registrations have been declared or ordered effective; or
(iiiii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below1.3below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iviii) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof1.4hereof; or
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (1212)-month period; or
(v) month period and provided further that if the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account anticipated aggregate offering price (net of any Holder, during such ninety (90underwriters’ discounts or commissions) day period (other is less than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)$4,000,000.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (PolyPid Ltd.)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of (i) five four (54) years after from the date of this Agreement or the Initial Closing and (ii) six (6) months after the effective date of the Initial OfferingOffering or Direct Listing, a written request from the Holders of thirty percent (30%) or more at least 50% of the Registrable Securities then outstanding (for purposes of this Section 1.22.1, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00030,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.22.1, and the Company shall include such information in the written notice referred to in Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities then held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or;
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.22.1, and such registrations have been declared or ordered effective; or;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 2.2 below, provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once in any twelve (12) month period ; and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Zymergen Inc.), Investors’ Rights Agreement (Zymergen Inc.)
Request for Registration. (a) (i) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement December 18, 2000 or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty twenty percent (3020%) or more of the Registrable Securities then outstanding (for purposes including in such twenty percent Holders of this Section 1.2, a majority of the WBCP Shares and Holders of a majority of the shares of the Company’s Series B Preferred Stock or Common Stock issued upon conversion thereof) (the “Initiating Holders”) ), that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,0004,000,000 net of underwriter discounts and commissions, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effectfile, as soon as practicablewithin forty-five (45) days, the a registration statement under the Act of all covering the Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a), and to use reasonable efforts to cause such registration statement to become effective within one hundred twenty (120) days of the Initiating Holders’ request for registration.
(ii) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the sixth anniversary of the date hereof a written request from the Holders of a majority of the WBCP Shares (the “Initiating WBCP Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $4,000,000 net of underwriter discounts and commissions, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all reasonable efforts to file, within forty-five (45) days, a registration statement under the Act covering the Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a), and to use reasonable efforts to cause such registration statement to become effective within one hundred twenty (120) days of the Initiating WBCP Holders’ request for registration.
(b) If the Initiating Holders or Initiating WBCP Holders, as applicable, intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed in the case of a registration under section (a)(i) above by a majority in interest of the Initiating Holders and such Holder or, in the case of a registration under section (a)(ii) above, a majority in interest of the Initiating WBCP Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders in the case of a registration under section (a)(i) above or reasonably acceptable to a majority in interest of the Initiating WBCP Holders in the case of a registration under section (a)(ii) above). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders or Initiating WBCP Holders, as the case may be). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders or Initiating WBCP Holders, as the case may be, propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) sixty days after receipt of the request of the Initiating Holders or Initiating WBCP Holders, as the case may be, provided that such right to delay a request shall be exercised by the Company not more than once twice in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)12)-month period.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (HouseValues, Inc.), Investors’ Rights Agreement (HouseValues, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date fifth anniversary of the Effective Date of this Agreement Agreement, or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering Securities Act, provided that the registration of Registrable Securities with an anticipated aggregate offering price price, net of at least selling expenses, would exceed $10,000,000, then the Company shall, within twenty (20) 20 days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially reasonable its best efforts to effect, file as soon as practicable, and in any event within 30 days of the receipt of such request, a registration statement under the Securities Act of covering all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a)registered.
(b) If the Holders initiating the registration request hereunder (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all participating Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each participating Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2, a certificate signed by the Chief Executive Officer or President of the Company stating that in the good faith judgment of the Board of Directors of the Company (the “Board of Directors”), it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than 90 days after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve-month period, and provided, further, that the Company shall not register any securities for the account of itself or any other stockholder during such 90 day period (other than a Qualified IPO, a registration relating solely to the sale of securities to participants in a Company stock plan or a transaction covered by Rule 145 under the Securities Act, or a registration in which the only stock being registered is Common Stock issuable upon conversion of debt securities which are also being registered).
(d) In addition, the Company shall not be required obligated to effect a effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after After the Company has effected two (2) 2 registrations pursuant to this Section 1.2, 1.2 and such registrations have been declared or ordered effective;
(ii) During the period commencing on the effective date of the registration statement for the initial public offering of the Company’s securities and ending on a date 180 days after the effective date of such registration; or
(iii) during If the period starting with Company delivers notice to the date sixty (60) Holders within 20 days prior to of the Company’s good faith estimate receipt of the date of Initiating Holders’ registration request declaring the filing of and ending on Company’s intention to file within 60 days a date one hundred eighty (180) days following registration statement for the effective date of a Company-initiated registration subject to Section 1.3 below’s initial public offering, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Expensify, Inc.), Investors’ Rights Agreement (Expensify, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders (the “Initiating Holders”) of at least thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an anticipated aggregate offering price (before deduction of underwriting discounts, commissions and expenses) of at least $10,000,0007,500,000, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request requests to all Holders, Hony Holders and Existing Holders and shall, subject to the limitations of this Section 1.2subsection 2.(b), use all commercially reasonable its best efforts to effect, file as soon as practicable, and in any event within ninety (90) days of the receipt of such requests, a registration statement under the Securities Act of covering all Registrable Securities, Hony Holders’ Registrable Securities that and Existing Holders’ Registrable Securities which the Initiating Holders (together with the other Holders, Hony Holders and Existing Holders who so request) request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2 and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 2.(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder, Hony Holder and Existing Holder to include its Registrable Securities, Hony Holders’ Registrable Securities or Existing Holders’ Registrable Securities in such registration shall be conditioned upon such Holderholder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities, Hony Holders’ Registrable Securities and Existing Holders’ Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holderholder) to the extent provided herein. All Holders, Hony Holders and Existing Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 5.(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters of internationally recognized standing selected for such underwriting by those Initiating reasonably acceptable to the Holders, Hony Holders holding and Existing Holders of at least a majority of the voting power of all Registrable Securities, Hony Holders’ Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall and Existing Holders’ Registrable Securities proposed to be reasonably acceptable to the Company)included in such registration. Notwithstanding any other provision of this Section 1.22, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders holders of Registrable Securities, Hony Holders’ Registrable Securities that or Existing Holders’ Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of such Registrable Securities, Hony Holders’ Registrable Securities or Existing Holder’s Registrable Securities that may be included in the underwriting shall be allocated to the among all participating Holders, Hony Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such and Existing Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities, Hony Holders’ Registrable Securities and Existing Holder’s Registrable Securities of the Company owned by each participating Holder, Hony Holder and Existing Holder; provided, however, that the number of shares of Registrable Securities, Hony Holders’ Registrable Securities and Existing Holders’ Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities entirely excluded from the underwriting; provided further that are not Registrable Securities held any Initiating Holder shall have the right to withdraw its request for registration from the underwriting by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund written notice to the Company and the underwriters delivered at least ten (or other investment fund), partnership or corporation, 10) days prior to the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any effective date of the foregoing persons registration statement, and such withdrawal request for registration shall not be deemed to be a single “constitute one of the registration rights granted pursuant to this Section 2. If any Holder”, Hony Holder or Existing Holder disapproves the terms of any underwriting, such holder may elect to withdraw therefrom by written notice to the Company and the underwriters delivered at least ten (10) days prior to the effective date of the registration statement. Any Registrable Securities, Hony Holders’ Registrable Securities or Existing Holder’s Registrable Securities excluded or withdrawn from such underwriting underwritten offering shall be withdrawn from the registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to a Holder, Hony Holder or Existing Holder to the nearest one hundred (100) shares.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Initiating Holders requesting a registration statement pursuant to this Section 1.2 2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) -month period and period; provided further that during such one hundred twenty (120) day period, the Company shall not register file any registration statement pertaining to the public offering of any securities for of the account of itself or any other stockholderCompany.
(d) In addition, and the Company shall not register be obligated to effect, or to take any securities that are not Registrable Securities for action to effect, any registration pursuant to this Section 2:
(i) After the account of any Holder, during Company has effected three (3) registrations pursuant to this Section 2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date ninety (90) day period (other than a registration relating solely days prior to the sale Company’s good faith estimate of securities the date of participants in filing of, and ending on a Company stock plandate ninety (90) days after the effective date of, a registration relating subject to Section 3 of this Schedule 1; provided that the Company is actively employing in good faith its best efforts to cause such registration statement to become effective and that the Holders are entitled to join such registration in accordance with Section 3 of this Schedule 1;
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 or Form F-3 pursuant to a corporate reorganization or transaction under Rule 145 request made pursuant to Section 4 below; or
(iv) If such registration may be declared effective within one hundred twenty (120) days of the Act, a effective date of any registration on any form that does not include substantially the same information as would be required effected pursuant to be included in a registration statement covering the sale Section 1.2 of the Registrable SecuritiesExisting Investors’ Rights Agreement (the “Existing Registration”), or a pursuant to the demand registration in which rights of the only Common Stock being registered is Common Stock issuable upon conversion Existing Holders, provided that the Existing Registration had provided the Holders with an opportunity to participate pursuant to the provisions of debt securities that are also being registered)Section 3 of this Schedule 1.
Appears in 2 contracts
Sources: Investor Rights Agreement (Caissa Sega Tourism Culture Development Group Co., Ltd.), Investor Rights Agreement (JD.com, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five the fourth (54th) years after anniversary of the date of this Agreement hereof or (ii) six one (61) months year after the effective date of the Initial OfferingIPO (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction that does not cause any securities of the Company similar to the Registrable Securities to be listed on a securities exchange), a written request from the Holders of thirty percent (at least 30%) or more % of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of at least twenty percent (20%) of the Registrable Securities then outstanding (or such lesser number of shares of Registrable Securities, with an anticipated aggregate offering price of at least which, net of underwriting discounts and commissions, would exceed $10,000,000, 5,000,000) then the Company shall, :
(b) within twenty ten (2010) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, ; and
(c) use all commercially reasonable its best efforts to effect, effect as soon as practicable, the registration under the Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company (within twenty (20) days of the mailing of such notice by the Company’s notice pursuant Company in accordance hereof) to this Section 1.2(abe registered, subject to the limitations of subsection 1.2(d).
(bd) If the Holders initiating the registration request hereunder (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company or the Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all participating Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(ce) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further that period.
(f) In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 1.2:
(i) After the account Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective provided that either (A) the conditions of itself Section 1.4(a) have been satisfied or any other stockholder(B) the registration statements continue to remain effective and there are no stop orders in effect with respect to such registration statements;
(ii) During the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of filing of, and shall not register any securities ending on a date 90 days after the effective date of a registration subject to Section 1.3 hereof (unless such registration is the Company’s initial public offering of its securities, in which event ending on a date 180 days after such effective date); provided that are not the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 1.11 below.
Appears in 2 contracts
Sources: License Agreement (Orexigen Therapeutics, Inc.), License Agreement (Orexigen Therapeutics, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Public Offering, a written request from the Holders of thirty percent one-third (30%1/3) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis (as nearly as practicable) based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In , provided that no event shall any Registrable Securities shall be excluded from such underwriting unless and until all other securities are first of the Company have been excluded, including securities ; and provided further that are not at least 25% of the Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed requested to be a single “Holder”included in such underwriting are in fact so included. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoingIn addition, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective;
(ii) If the Company has effected a registration pursuant to this Section 1.2 within the preceding twelve (12) months, and such registration has been declared or ordered effective;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred eighty (180) days following the effective date of, a Company-initiated registration subject to Section 1.3, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4; or
(v) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (CloudMinds Inc.), Investors’ Rights Agreement (Cloudminds Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, hereof a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement (which may be on Form S-1 or Form S-3, if the Company is eligible for Form S-3) under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price price, net of underwriting discounts and commissions, of at least $10,000,000500,000, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially reasonable its best efforts to effect, effect as soon as practicable, and in any event within 60 days of the receipt of such request, the registration under the Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)4.5.
(b) If the Initiating Holders initiating the registration request hereunder ("INITIATING HOLDERS") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)Holders. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; PROVIDED, HOWEVER, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; PROVIDED, provided HOWEVER, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely be obligated to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securitieseffect, or a to take any action to effect, more than two (2) registrations pursuant to this Section 1.2, provided that each such registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)has been declared or ordered effective.
Appears in 2 contracts
Sources: Common Stock and Warrant Purchase Agreement (Cambridge Soundworks Inc), Investor Rights Agreement (Cambridge Soundworks Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the date that is the earlier of (i) five (5) years after the second anniversary of the date of this Agreement or hereof and (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month 12)-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (FireEye, Inc.), Investors’ Rights Agreement (FireEye Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five three (53) years after the date of this Agreement Agreement, or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty twenty percent (3020%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00020,000,000 (prior to underwriting discounts and commissions), then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not . Any Registrable Securities held by Holdersexcluded or withdrawn from such underwriting shall be withdrawn from the registration. For purposes of this Section 1.2(b), any selling Holder of Registrable Securities that is a venture capital fund (or other an investment fund), partnership partnership, limited partnership, limited liability company or corporation, the venture capital funds (or other affiliated investment funds), partners, limited partners, members, retired partners partners, retired members and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and partners, members, retired partners partners, retired members, stockholders and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder”. Any ,” and any pro rata reduction with respect to such “selling Holders” shall be based upon the aggregate amount of Registrable Securities excluded or withdrawn from owned by all such underwriting shall be withdrawn from the registrationrelated entities and individuals.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Sumo Logic, Inc.), Investors’ Rights Agreement (Sumo Logic, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this the Purchase Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of at least a majority of the Registrable Securities with an then outstanding (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $10,000,0007,500,000), then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or;
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Guardant Health, Inc.), Investors’ Rights Agreement (Guardant Health, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty at least fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.22.1, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.22.1, and the Company shall include such information in the written notice referred to in Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities then held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.22.1, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 2.2 below, provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once in any twelve (12) month period period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (DoorDash Inc), Investors’ Rights Agreement (DoorDash Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of one hundred eighty (i180) five (5) years after the date of this Agreement or (ii) six (6) months days after the effective date of the Initial Offeringfirst registration statement for a public offering of securities of the Company (other than Special Registration Statements), a written request from the Holders of thirty at least forty percent (3040%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an Securities, the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, of which would exceed $10,000,0007,500,000, then the Company shall, :
(i) within twenty ten (2010) days of after the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, ; and
(ii) effect as soon as practicable, and in any event within sixty (60) days after the receipt of such request, the registration under the Act of all Registrable Securities that which the Holders request to be registered in a written request received registered, subject to the limitations of subsection 1.2(b), within thirty (30) days after the mailing of such notice by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this in accordance with Section 1.2(a)3.6.
(b) If the Holders initiating the registration request hereunder (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by the Company. In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and Holders, such Holder, and the Company) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s President or Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 1.2:
(i) After the account Company has effected two registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date of itself or any other stockholderfiling of, and shall not register any securities that are not Registrable Securities for ending on a date one hundred eighty (180) days after the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planeffective date of, a registration relating subject to Section 1.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 1.12 below.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Airgain Inc), Investors’ Rights Agreement (Airgain Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive receive, at any time after subsequent to one hundred eighty (180) days following the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date completion of the Initial Offering, a written request from the Holders of thirty percent (30%) or more at least a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with which would yield an anticipated aggregate offering price to the public of at least $10,000,000, then the Company shall, :
(i) within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and ; and
(ii) subject to the limitations of this set forth in Section 1.21.2(b), use all its commercially reasonable best efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered registered, including any Registrable Securities specified in a written request received notice delivered by any Holder, other than the Initiating Holders, to the Company within twenty (20) days of the mailing after receipt by such Holder of the Company’s notice pursuant referred to this in Section 1.2(a)1.2(a)(i) above.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2(a) and the Company shall include such information in the written notice referred to in Section 1.2(a1.2(a)(i). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall (together with the Company as provided in Section 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company and the Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the Holders amount of such Registrable Securities pro rata based on of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from included in such underwriting shall not be withdrawn reduced unless all securities other than Registrable Securities are first entirely excluded from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to the Initiating Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman an officer of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the CompanyCompany (the “Board”), it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed because such timeaction would (i) materially interfere with a significant acquisition, in which event corporate reorganization or other similar transaction involving the Company, (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential information, or (iii) render the Company unable to comply with requirements of the 1934 Act, the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety to exceed one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further period; provided, further, that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety one hundred twenty (90120) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under SEC Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
(d) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) after the Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective;
(ii) during the period starting with the date ninety (90) days prior to the Company’s good faith estimate of the date of filing, and ending on a date one hundred and eighty (180) days after the effective date, of any other registration by the Company under the Act (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under SEC Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered), provided that the Company is actively employing, in good faith, reasonable efforts to cause such registration statement to become effective and the Company delivers notice of such intent to the Initiating Holders within thirty (30) days of the registration request; or
(iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.12 below.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Castlight Health, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive receive, at any time after the earlier of (i) five (5) years after the date of this Agreement February 9, 2000 or (ii) six (6) months after the effective date of the Initial Offeringfirst registration statement for a public offering of securities of the Company to the general public, a written request from the Holders of thirty percent (at least 30%) or more % of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement (other than on Form S-3) under the Act covering the registration (x) of at least 25% of the Registrable Securities originally issued to the Holders with an aggregate offering price to the public of such Registrable Securities reasonably expected to be not less than $20,000,000 or (y) of at least $7,500,000 of Registrable Securities with an anticipated aggregate offering price to the public of at least such Registrable Securities and all other securities included in such registration reasonably expected to be not less than $10,000,00015,000,000, then the Company shall, within twenty (20) ten days of the receipt thereofof such request, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.22(b), use all commercially reasonable its best efforts to effect, effect as soon as practicable, practicable the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company to be given within twenty (20) 30 days of the mailing of such notice by the Company’s notice pursuant to this Section 1.2(a).
(b) If The Holders initiating the registration request hereunder ("Initiating Holders intend to Holders") must distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a)public offering underwritten by a reputable national or regional underwriter. In such event the The right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall (together with the Company as provided in Section 4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)Holders. Notwithstanding any other provision of this Section 1.22, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder in proportion (as nearly as practicable) to the amount of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Company owned by each Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required is obligated to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected no more than two (2) registrations pursuant to this Section 1.2, and 2 or more than one such registrations have been declared or ordered effective; orregistration during any 12- month period.
(iiid) during Notwithstanding the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 belowforegoing, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 1.2 2: (i) a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period up to two periods of not more than ninety (90) 90 days each after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not use this right more than once (for a total of up to 180 days) in any twelve (12) -month period and provided further or (ii) within 30 days of receiving a request for registration pursuant to this Section 2, a certificate signed by the President of the Company stating that the Company intends within 45 days of the date of such certificate to file a registration statement for the initial public offering of securities of the Company to the general public, the Company shall not be obligated to effect the registration requested pursuant to this Section 2; provided, however, that the Company shall not register any securities for promptly notify the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account Holders requesting a registration pursuant to this Section 2 of any Holder, during decision by the Company to abandon or indefinitely delay such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)initial public offering.
Appears in 1 contract
Sources: Registration Rights Agreement (Primus Knowledge Solutions Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of either (i) five ninety (590) years days after the date of this Agreement any Direct Listing Effectiveness or (ii) six one hundred eighty (6180) months days after the effective date of the any Initial Offering, a written request from the Holders a Major Holder as of thirty percent (30%) or more of the Registrable Securities then outstanding immediately prior to an Initial Public Event (for purposes of this Section 1.22.1, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price (net of underwriting discounts and commissions) of at least $10,000,00020,000,000, then the Company shall, within twenty thirty (2030) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2.1 and the Company shall include such information in the written notice referred to in Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto; provided, and the number of shares that may be included however, in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities held by a Holder that is an Investor (and that such Investor has requested to be registered) be excluded from such underwriting unless all other securities are first excluded, including securities . In the event the underwriters determine that less than all of the Registrable Securities of the Holders that are not Investors requested to be registered can be included in such offering in accordance with the foregoing, then the Registrable Securities of such Holders that are included in such offering shall be apportioned pro rata among such Holders based on the number of Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of each such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.22.1 with respect to General Atlantic, or one (1) registration pursuant to this Section 2.1 with respect to each of Index and Accel, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 2.2 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month 12)-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (ai) Subject to the conditions of this Section 1.25.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after following the effective date of the Initial Offeringregistration statement for the IPO, a written request from the Holders of thirty twenty-five percent (3025%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.25.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least ten percent (10%) of the Registrable Securities with an anticipated aggregate offering price of at least $10,000,000then outstanding, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.25.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a5.2(i).
(bii) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.25.2, and the Company shall include such information in the written notice referred to in Section 1.2(a5.2(i). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.25.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares Shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(ciii) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.25.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(iia) after the Company has effected two (2) registrations pursuant to this Section 1.25.2, and such registrations have been declared or ordered effective; or;
(iiib) If the Company has effected a registration pursuant to this Section 5.2 within the preceding twelve (12) months, and such registration has been declared or ordered effective;
(c) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below5.3, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(ivd) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 F-3 pursuant to Section 1.4 hereof; or5.4;
(ve) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 5.2 a certificate signed by the Company’s Chief Executive Officer CEO or Chairman chair of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders members for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account other of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, its Shares during such ninety (90) day period days period; or
(other than a registration relating solely to f) in any particular jurisdiction in which the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be included required under the Securities Act or pursuant to applicable securities laws in a registration statement covering other jurisdictions, as the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)case may be.
Appears in 1 contract
Sources: Shareholders’ Agreement (Allogene Therapeutics, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years one year after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more at least 150,000 Shares of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of the entire amount of the Registrable Securities with an anticipated aggregate offering price of at least $10,000,000held by the Initiating Holders, then the Company shall, within twenty (20) 20 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) 20 days of the mailing of the Company’s notice pursuant to this Section 1.2(a). Holders requesting registration of Registrable Securities in response to the Company’s notice given pursuant to this Section 1.2 (a) are herein referred to as “Participating Holders”.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Participating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Participating Holders (which underwriter or underwriters shall be are reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. The Registrable Securities to be excluded or withdrawn shall be determined in the following sequence: (i) securities held by any persons other than the Holders, including persons having a contractual, incidental “piggy back” right to include such securities in the registration statement, (ii) securities sought to be registered by the Company, and (iii) Registrable Securities held by the Holders.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) 2 registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effectiveeffective and remained effective for the period required by section 1.5 (a); or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such timetime as a result of requiring a disclosure that would cause a material adverse affect on any plan or agreement with respect to any financing, acquisition, or other material transaction, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) -month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 1 contract
Sources: Registration Rights Agreement (China Technology Development Group Corp)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five four (54) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already required to qualify to do business or is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty ninety (18090) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 1 contract
Request for Registration. (a) 2.1.1 Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement April 24, 2024 or (ii) six (6) months after the effective date of the Initial Offeringregistration statement for an IPO or Direct Listing, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.22.1, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an anticipated aggregate offering price price, net of Selling Expenses, of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a)2.1.1.
(b) 2.1.2 If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.22.1, and the Company shall include such information in the written notice referred to in Section 1.2(a)2.1.1. In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities then held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) 2.1.3 Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(ia) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Securities Act; or
(iib) after the Company has effected two (2) registrations pursuant to this Section 1.22.1, and such registrations have been declared or ordered effective; or
(iiic) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 2.2 below, provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or
(ivd) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(ve) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected or remain effective at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once in any twelve (12) month period period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale an Excluded Registration).
2.1.4 For purposes of securities of participants in a Company stock planSubsection 2.1.3(b), a registration relating to shall not be counted as “effected” if, as a corporate reorganization or transaction under Rule 145 result of an exercise of the Actunderwriter’s cutback provisions in Subsection 2.1.2, a registration on any form fewer than fifty percent (50%) of the total number of Registrable Securities that does not include substantially the same information as would be required Holders have requested to be included in a such registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)actually included.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement November 26, 2002, or (ii) six one hundred eighty (6180) months days after the effective date of the Initial Offeringfirst registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders of thirty twenty-five percent (3025%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least twenty- five percent (25%) of the Registrable Securities with an then outstanding (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $10,000,0005,000,000), then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially reasonable its best efforts to effect, effect as soon as practicable, and in any event within 60 days of the receipt of such request, the registration under the Securities Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)3.5.
(b) If the Initiating Holders initiating the registration request hereunder ("INITIATING HOLDERS") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)Holders. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; PROVIDED, HOWEVER, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; PROVIDED, provided HOWEVER, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 1.2:
(i) After the account Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior to the Company's good faith estimate of itself or any other stockholderthe date of filing of, and shall not register any securities that are not Registrable Securities for ending on a date one hundred eighty (180) days after the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planeffective date of, a registration relating subject to Section 1.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 1.4 below.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years May 18, 2000 or 90 days after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a Qualifying IPO a written request from the Holders of thirty percent (at least 30%) or more % of the Registrable Securities Preferred Stock then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the number of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000set forth in such notice held by such Holders, then the Company shall, shall within twenty (20) ten days of the receipt thereof, give written notice notice, in accordance with Section 4.3 hereof, of such request to all Holders, Holders of then outstanding Registrable Securities and subject take the actions set forth in Section 2.5. Each Holder that desires to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, include Registrable Securities in the registration under statement shall notify the Act Company of all the number of Registrable Securities that the Holders request to be registered in a written request received by so included within ten days following the Company within twenty (20) days receipt of the mailing of the Company’s notice pursuant to this Section 1.2(a)such notice.
(b) If the Initiating requesting Holders intend to distribute the their Registrable Securities covered by their request by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, Subsection 2.1(a) and the Company shall include such information in the written notice to other Holders of Registrable Securities referred to in Section 1.2(aSubsection 2.1(a). In such event event, the right of any Holder to include his, her or its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided hereinunderwritten offering. All Holders proposing to distribute their Registrable Securities securities through such underwriting underwritten offering shall (together with the Company as provided in Subsection 2.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected by the Company for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders The inclusion of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting registration of an underwritten offering under this Section 2.1 shall be allocated subject to the Holders provisions of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration2.7.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that that, in the good faith reasonable judgment of the Company's Board of Directors (the "Board of Directors") (with the concurrence of the Companymanaging underwriter, it if any), such registration of Registrable Securities would be seriously detrimental to interfere materially with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company and or any of its stockholders for such registration statement to be effected wholly-owned subsidiaries or would otherwise have a material adverse effect on the Company or the selling Holders if undertaken at such timethe time requested, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve month period.
(12d) month period and provided further that In addition, the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely be obligated to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securitieseffect, or a to take any action to effect, any registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).pursuant to this Section 2.1:
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at At any time after the earlier of (i) five (5) years after the date of this Agreement September 6, 2004 or (ii) the date six (6) months after the effective closing date of the Initial Offeringfirst registered public offering of equity securities of the Company, if the Company shall receive a written request from the Holders any Holder(s) of at least thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of and entitled to registration rights under this Section 1.2, 1 (the “Initiating Holders”) that the Company file a effect the registration statement under the 1933 Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty fifteen (2015) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, effect such a registration as soon as practicable, practicable and in any event to file within 90 days of the receipt of such request a registration statement under the 1933 Act of covering all the Registrable Securities that which the Holders shall in writing request to be registered in a written request received (within 20 days of receipt of the notice given by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a)) to be included in such registration and to use its best efforts to have such registration statement become effective; provided, however, that the Company will not be required to effect the registration of Registrable Securities under this Section 1.2(a) unless the Registrable Securities are offered at a proposed aggregate offering price of not less than $7,500,000.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority two-thirds in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Section 1.4(d)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those the Company and reasonably acceptable to two-thirds in interest of the Initiating Holders; provided, however, that if the underwriter is not reasonably acceptable to two-thirds in interest of the Initiating Holders, such Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which may select an underwriter or underwriters which shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if if, in the case of a registration requested pursuant to Section 1.2(a), the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise the Company and all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and all the securities other than Registrable Securities sought to be included in the underwriting shall first be excluded. To the extent that further limitation is required, the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on among all Holders thereof desiring to participate in such underwriting (according to the number of Registrable Securities then held by all each such Holders (including the Initiating HoldersHolder). In no event shall any No Registrable Securities requested by any Holder to be included in a registration pursuant to Section 1.2(a) shall be excluded from such the underwriting unless all securities other securities than Registrable Securities are first excluded.
(c) The Company is obligated to effect only two registrations pursuant to Section 1.2(a); provided, including securities however, that are not Registrable Securities held by Holders. For purposes of this no registration pursuant to Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons 1.2(a) shall be deemed to be a single “Holder”. Any registration for any purpose of this sentence if (i) the number of Registrable Securities excluded included in the underwriting does not equal or withdrawn from exceed 75% of the number of Registrable Securities proposed by the Holders to be distributed through such underwriting and (ii) the Holders pay all expenses of such registration, including those otherwise payable by the Company in accordance with Section 1.6; and provided, further, that no registration of Registrable Securities which shall not have become and remained effective in accordance with Section 1.4 shall be deemed to be a registration for any purpose of this sentence unless such registration was withdrawn from at the registrationrequest of the Holders except under the circumstances described in the second proviso in the penultimate sentence of Section 1.6 hereof.
(cd) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to foregoing provisions of this Section 1.2:
(i) , in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless event that the Company is already subject requested to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations file any registration statement pursuant to this Section 1.2, and (i) the Company shall not be obligated to effect the filing of such registrations have been declared or ordered effective; orregistration statement:
(iiiA) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) 180 days following the effective date of any other registration statement pertaining to an underwritten public offering of securities for the account of the Company or any Holder;
(B) during the 12 months following the effective date of any other registration statement which the Company has filed pursuant to a request under Section 1.2(a);
(C) if, in the case of the initial public offering of the Company-initiated registration subject ’s securities, the Company and the Initiating Holders are unable to obtain the commitment of the underwriter selected pursuant to Section 1.3 below, provided that 1.2(b) to underwrite the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveoffering on a firm commitment basis; or
(ivD) for a period of up to 90 days after the date of a request for registration pursuant to this Section 1.2 if at the Initiating Holders propose time of such request (1) the Company is engaged, or has fixed plans to dispose engage, within 90 days of the time of such request, in a firm commitment underwritten public offering of Common Stock in which the holders of Registrable Securities that may be registered on Form S-3 include Registrable Securities pursuant to to
Section 1.4 hereof1. 3 or (2) the Company is currently engaged in a self-tender or exchange offer and the filing of a registration statement would cause a violation of the Securities Exchange Act of 1934, as amended (the “1934 Act”); or
or (vii) if the Company shall furnish to the Holders requesting a such registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the CompanyDirectors, it would not be seriously detrimental to in the best interests of the Company and its stockholders generally for such registration statement to be effected at such timefiled, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the relevant Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize the right set forth in this Section 1.2(d)(ii) more than once in any twelve twelve-month period.
(12e) month period and provided further that Each registration requested pursuant to Section 1.2(a) shall be effected by the Company shall filing of a registration statement on Form S-1 (or if such form is not register any securities for the account of itself or available, any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include which includes substantially the same information (other than information which is incorporated by reference) as would be required to be included in a registration statement covering on such form as currently constituted), unless the sale use of a different form is consented to by Initiating Holders holding two-thirds of the Registrable SecuritiesSecurities held by all Initiating Holders or unless another form would be equally effective, or a registration in which as determined by the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Initiating Holders at their sole discretion.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2paragraph 2.1(c) below, at any time, and from time to time, on or after January 1, 2005, if J▇▇▇▇▇▇ is at the Company shall receive at time of a request a registrant entitled to register the Registrable Securities for resale on Form S-▇, ▇-▇ or S-3 or any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offeringsuccessor form thereto, a written request from the Holders of thirty percent (30%) or more at least 25% of the then Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) may request in a written notice that the Company J▇▇▇▇▇▇ file a registration statement Registration Statement on such form under the Securities Act (or a similar document pursuant to any other statute then in effect corresponding to the Securities Act) covering the registration of all or a part of the Registrable Securities held by such Initiating Holders with an anticipated aggregate offering estimated selling price (prior to underwriters’ commissions and expenses) of at least not less than One Million Five Hundred Thousand Dollars ($10,000,0001,500,000.00) for sale pursuant to a firm commitment underwritten public offering. Following receipt of any notice under this Section 2.1, then subject to the Company shallremaining provisions of this Section 2.1, J▇▇▇▇▇▇ shall (x) within twenty (20) days of the receipt thereoften days, give written notice notify all other Holders of such request to all Holdersin writing and (y) thereupon will, and subject to the limitations of this Section 1.2as expeditiously as possible, use all its commercially reasonable efforts to effect, as soon as practicable, the registration cause to be registered under the Securities Act of all Registrable Securities that the Initiating Holders request and such other Holders have, within ten days after J▇▇▇▇▇▇ has given such notice, requested be registered. J▇▇▇▇▇▇ will use its commercially reasonable efforts to cause the Registration Statement to be registered in a written request received declared effective by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a)SEC as soon as practicable.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the The right of any Holder to include its Registrable Securities in such a registration shall be conditioned upon such Holder’s participation in such underwriting underwritten offering and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided hereinunderwritten offering. All Holders proposing to distribute their Registrable Securities through such underwriting underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriters. Such underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision recognized investment banking firm(s) selected by a majority in interest of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders)Holders and approved by J▇▇▇▇▇▇. In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), If any Holder of Registrable Securities that is a venture capital fund (or other investment fund)disapproves of the terms of the underwriting, partnership or corporationsuch Holder may elect to withdraw all its Registrable Securities by written notice to J▇▇▇▇▇▇, the venture capital funds (or other investment funds), partners, retired partners managing underwriter and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”Initiating Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting also shall be withdrawn from the registration.
(c) Notwithstanding any provision of this Agreement to the foregoingcontrary, the Company J▇▇▇▇▇▇ shall not be required to effect a registration requested pursuant to this Section 1.2:
2.1 (i) in any particular jurisdiction in which if J▇▇▇▇▇▇ has, within the Company would be required to execute twelve-month period preceding the date of such request, already effected a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations registration for Holders pursuant to this Section 1.22.1, and such registrations have been declared or ordered effective; or
(iiiii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of by J▇▇▇▇▇▇ of, and ending on a date one hundred eighty (180) 180 days following the effective date of, a Registration Statement pertaining to a public offering of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself J▇▇▇▇▇▇ or on behalf of selling shareholders under any other stockholderregistration rights agreement or (iii) if within 20 days prior to the receipt by J▇▇▇▇▇▇ of the written notice issued by the Initiating Holders requesting registration pursuant to Section 2.1(a), and J▇▇▇▇▇▇ receives for or on behalf of any third party or parties exercising rights (whether existing on the date hereof or hereafter granted by J▇▇▇▇▇▇) similar to those provided for in Section 2.1(a) to have securities of J▇▇▇▇▇▇ held by such third party or parties registered under the Securities Act (or other statute then in effect corresponding to the Securities Act).
(d) Subject to the following sentence, if the managing underwriter for a requested registration advises J▇▇▇▇▇▇ in writing that, in its opinion, the number of securities requested to be included in such registration (including securities of J▇▇▇▇▇▇ which are not Registrable Securities) exceeds the number that can be sold in such offering at a price reasonably related to the then-current market value of such securities, J▇▇▇▇▇▇ will include in such registration only the Registrable Securities requested to be included in such registration. In the event that the number of Registrable Securities requested to be included in such registration exceeds the number which, in the opinion of such managing underwriter, may be sold at a price reasonably related to the then-current market value of such securities, the number of such Registrable Securities to be included in such registration shall 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 hereby allocated to any such Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner). In the event that the number of Registrable Securities requested to be included in such registration is less than the number which, in the opinion of the managing underwriter, may be sold at a price reasonably related to the then-current market value of such securities, J▇▇▇▇▇▇ may include in such registration the securities J▇▇▇▇▇▇ proposes to sell up to the number of securities that, in the opinion of the managing underwriter, may be sold at a price reasonably related to the then-current market value of such securities. J▇▇▇▇▇▇ will not register include in any requested registration pursuant to this Section 2.1 any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants J▇▇▇▇▇▇) without the prior written consent of the holders of at least a majority of the Registrable Securities included in such registration.
(e) If the Board of Directors of J▇▇▇▇▇▇ reasonably determines that any registration of Registrable Securities should not be made or continued due to a Company stock planvalid need not to disclose confidential information or because it would interfere with any financing, acquisition, corporate reorganization or merger or other transaction involving J▇▇▇▇▇▇ (any of such events or circumstances, a registration “Valid Business Reason”), J▇▇▇▇▇▇ may postpone filing a Registration Statement relating to a corporate reorganization request for registration under this Section 2.1 until such Valid Business Reason no longer exists and, in case any such Registration Statement has been filed J▇▇▇▇▇▇ may, with respect to a registration effected pursuant to this Section 2.1, cause such Registration Statement to be withdrawn and its effectiveness terminated or transaction under Rule 145 may, with respect to a registration effected pursuant to this Section 2.1, postpone amending or supplementing such Registration Statement; and J▇▇▇▇▇▇ shall give written notice (a “Delay Notice”) of (i) its determination to postpone or withdraw a Registration Statement, and (ii) of the Actfact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof.
(f) Prior to filing a registration Registration Statement or Prospectus or any amendments or supplements thereto, J▇▇▇▇▇▇ shall (i) provide the Holders with an adequate and appropriate opportunity to participate in the preparation such Registration Statement and each Prospectus included therein (and each amendment or supplement thereto or comparable statement) to be filed with the SEC and (ii) not file any such Registration Statement or Prospectus (or amendment or supplement thereto or comparable statement) with the SEC to which the Holders’ counsel or any underwriter shall have reasonably objected on any form that the grounds such filing does not include substantially comply in all material respects with the same information as would be required to be included in a registration statement covering the sale requirements of the Registrable Securities, or a registration in which Act and of the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)rules and regulations thereunder.
Appears in 1 contract
Request for Registration. (a) Subject to the terms and conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders Holder(s) of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2collectively, the “Initiating HoldersRequesting Holder”) ), requesting that the Company file a registration statement under the Act covering the registration of all or any portion of the Registrable Securities with then outstanding having an anticipated aggregate offering price to the public (net of at least any underwriter’s discounts or commissions) of not less than $10,000,000, 50,000,000 then the Company shall, :
(i) within twenty ten (2010) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, ; and
(ii) effect as soon as practicable, and in any event within ninety (90) days of the receipt of such request, the registration under the Act of all Registrable Securities that the Holders request to be registered registered, together with all or such portion of the Registrable Securities of any Holder or Holders joining in a written such request received by pursuant to the Company terms of this Agreement, subject to the limitations of subsection 1.2(b), within twenty fifteen (2015) days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)4.5.
(b) If the Initiating Holders intend Requesting Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to this Section 1.2, subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 1.2(a)(i). The underwriter will be selected by the Requesting Holder and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Requesting Holder in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Requesting Holder shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders electing to include shares in the offering in proportion (as nearly as practicable) to the Holders amount of such Registrable Securities pro rata based on of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities to be excluded from included in such underwriting by the Requesting Holder shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2, a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of a majority of the Board of Directors of the Company (the “Board of Directors”) it would be materially detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Requesting Holder; provided, however, that the Company may not postpone the filing or effectiveness of one or more registration statements for more than ninety (90) days in the aggregate in any twelve (12) month period.
(d) In addition, notwithstanding anything to the contrary set forth herein, the Company shall not be required obligated to effect a effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two three (23) registrations pursuant to this Section 1.2, 1.2 and such registrations have been declared or ordered effective; orprovided, however, that for purposes of this clause (i), each Underwritten Offering under Section 1.12(b) shall constitute a registration pursuant to this Section 1.2 that has been declared or ordered effective;
(iiiii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following after the effective date of of, a Company-initiated registration subject statement filed by the Company pursuant to Section 1.2 or 1.3 below, hereof; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become be effective; or
(iviii) if the Initiating Holders propose Requesting Holder proposes to dispose of shares of Registrable Securities that may be registered on Form S-3 are eligible for resale under a shelf registration statement (or pursuant to an amendment or supplement thereto) that is effective and available pursuant to Section 1.4 hereof; or
1.12(a) or (v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registeredb).
Appears in 1 contract
Sources: Participating Preferred Stock Purchase Agreement (Reliant Energy Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company PMC shall receive at any time after the earlier it has had net operating income of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offeringat least $1,250,000 for a fiscal quarter, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “"Initiating Holders”) "), that the Company PMC file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company PMC shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable best efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company PMC within twenty (20) days of the mailing of the Company’s PMC's notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company PMC as a part of their request made pursuant to this Section 1.2, 1.2 and the Company PMC shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders PMC (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company PMC that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company PMC shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company PMC shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company PMC would be required to execute a general consent to service of process in effecting such registration, unless the Company PMC is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company PMC has effected two one (21) registrations registration pursuant to this Section 1.2, and such registrations have registration has been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s PMC's good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below, provided that the Company PMC is actively employing in good faith all commercially reasonable best efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company PMC shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s PMC's Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyPMC, it would be seriously detrimental to the Company PMC and its stockholders for such registration statement to be effected at such time, in which event the Company PMC shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company PMC not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)12)-month period.
Appears in 1 contract
Sources: Investors' Rights Agreement (Murdock Communications Corp)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more at least a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once twice in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (a) Subject to If at any time more than one hundred eighty (180) days after the conditions initial public offering of this Section 1.2the Company's securities, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) Qualifying Request that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Act, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.22(b) below, use all commercially reasonable efforts to effect, effect as soon as practicable, and in any event within sixty (60) days of the receipt of such request, the registration under the Securities Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice Company in accordance with Section 19 below; provided, however, that (i) Registrable Securities having at least a proposed aggregate offering price of $3,000,000 are to be registered, and (ii) the Company shall be obligated to effect only two (2) registrations pursuant to this Section 1.2(a2(b); provided, further, that such notice shall be provided to all Investors holding registrable securities under the Investor Rights Agreement in accordance with the notice provisions of the Investor Rights Agreement who shall have participation rights in such registration under this section 2(a) equal to the Holders; provided, further, that in the event that a written qualifying request (as that term is defined in the Investor Rights Agreement) is made by Investors prior to the Company filing a registration statement in accordance with a Qualifying Request made under this Section 2(a), such Qualifying Request will be deemed withdrawn and shall not be consummated. Expect as otherwise provided in Section 6 hereof, registrations which are not consummated shall not be counted for this purpose.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a2(a). In such event event, the right of any Holder to include its such Holder's Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of between the Initiating Holders making the Qualifying Request and such Holder) to the extent provided herein; provided, however, that each Investor holding registered securities shall be eligible to participate in such underwriting and the Holders' rights to participate in such underwriting will be subordinate in all respects to Investor's rights to participate in such underwriting. A majority in interest of the Holders and Investors participating in the underwriting shall, after consultation with the Board of Directors of the Company, select the managing underwriter or underwriters in such underwriting, such underwriter(s) to be reasonably satisfactory to the Company. All Holders and Investors proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Section 4(f)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for or such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter underwriting; provided, however, that no such Holder or underwriters Investor shall be reasonably acceptable required to make any representations or warranties except as they relate to such Holder's or Investor's ownership of shares and authority to enter into the underwriting agreement and to such Holder's or Investor's intended method of distribution, and the liability of such Holder or Investor shall be limited to an amount equal to the Company)net proceeds from the offering received by such Holder or Investor. Notwithstanding any other provision of this Section 1.22, if the underwriter advises the Company Holders and Investors in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Holders and Investors shall so advise the Company and the Company shall so advise all Holders or Investors of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated (i) first to the Investors, (ii) then to the Holders of such Registrable Securities pro rata based on making the number Qualifying Request, and (iii) thereafter among all other Holders thereof, in proportion (as nearly as practicable) to the amount of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Company owned by each such other Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding In addition to any other rights to demand registration pursuant to this Section 2, Holders shall have the foregoingright to demand on an unlimited basis that the Company, at the Company's expense, include any or all of their Registrable Securities, in a registration statement on Form S-3 under the 1933 Act for the purpose of attempting to effect the public sale of such shares; provided, however, that (i) such Holders making such a demand under this Section 2(c) own in the aggregate at least five percent (5%) of the Registrable Securities; (ii) Registrable Securities having at least a proposed aggregate offering price of $1,000,000 are to be registered; (iii) Form S-3 is available with respect to the Registrable Securities; and (iv) the Company shall not be required to effect prepare and file a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant for the purpose of attempting to effect the public sale of shares as provided for in this Section 1.4 hereof; or2(c) more than once in any six (6) month period. The other terms and conditions relating to a demand registration referred to in this Section 2, including, without limitation, any subordination to the rights of Investors shall be applicable to a demand registration referred to in this Section 2(c), as the same may be applicable.
(vd) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed by reason of a material pending transaction and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating such Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement August 18, 2004 or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent at least 2,500,000 shares (30%as adjusted for any stock splits, stock dividends, recapitalizations or the like) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any , provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, entirely excluded from the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”underwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two three (23) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)12)-month period.
Appears in 1 contract
Request for Registration. (ai) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after following the effective date initial Public Offering of Shares of the Initial Offering, Company a written request from the Holders of thirty percent (30%) or more at least 25% of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of all or any portion of their Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, :
(A) within twenty ten (2010) days of the receipt thereof, give written notice of such request to all Holders, and subject Holders who shall have the right to request that all or part of their Registrable Securities be included in such registration statement by written notice delivered to the limitations Company within twenty (20) days after the date of this Section 1.2the Company's notice, which notice from each requesting Holder shall specify the number of shares requested to be registered; and
(B) use all commercially reasonable its best efforts to effect, as soon as practicablewithin one hundred twenty (120) days of the receipt of such request, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by registered, subject to the Company within twenty (20limitations of subsection 6(b)(ii) days of the mailing of the Company’s notice pursuant to this Section 1.2(a)below.
(bii) If the Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, subsection 6(b)(i) and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 6(b)(i). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 6(e)(v)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.26(b), if the underwriter advises the Initiating Holders and the Company in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Company owned by each Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(ciii) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 6(b), a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the Company, it would such filing could reasonably be seriously detrimental expected to have a material adverse effect on any plan or proposal by the Company with respect to any material transaction that the Company is at that time actively pursuing and its stockholders for it is therefore essential to defer the filing of such registration statement to be effected at such timestatement, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further that period.
(iv) In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 6(b):
(A) after the account Company has effected two (2) registrations pursuant to this Section 6(b) and such registrations have been declared or ordered effective;
(B) during the period starting with the date sixty (60) days prior to the Company's good faith estimate of itself or any other stockholderthe date of filing of, and shall not register any securities that are not Registrable Securities for ending on a date one hundred twenty (120) days after the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planeffective date of, a registration relating subject to a corporate reorganization or transaction under Rule 145 of Section 6(c) hereof, provided that the Act, a registration on any form that does not include substantially the same information as would be required Company is actively employing in good faith all reasonable efforts to be included in a cause such registration statement covering to become effective; or
(C) the sale Holders propose to sell Registrable Securities at an aggregate price to the public (net of the Registrable Securities, any underwriters' discounts or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion commissions) of debt securities that are also being registered)less than $30,000,000.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five two (52) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, as soon as reasonably practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two three (23) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty ninety (6090) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month 12)-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, shareholder during such ninety (90) 120-day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
(d) An Initiating Holder may, at any time prior to the effective date of a registration statement relating to a registration requested by such Initiating Holder, revoke such request, without liability to the Initiating Holders or any other Holders of Registrable Securities requested to be registered pursuant to this Section 1.2, by providing a written notice to the Company revoking such request; provided, that each such Initiating Holder shall be limited to only two (2) revocation requests under the terms of this Agreement.
(e) If any Holder disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the underwriter and the Initiating Holders. The Registrable Securities and/or other securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided, however, that if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the same proportion used above in determining the underwriter limitation.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Greenway Medical Technologies Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive receive, at any time after the earlier of commencing ninety (i90) five (5) years days after the date of this Agreement or (ii) six (6) months after the effective date of the Initial OfferingAgreement, a written request from the Holders of thirty Investors holding at least fifty percent (3050%) or more of the then outstanding Registrable Securities then outstanding (for purposes of this Section 1.2, held by the “Initiating Holders”) Investors that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, :
(i) within twenty ten (2010) days of the receipt thereof, give written notice notice, in accordance with Section 3.5 hereof, of such request to all Holders; and
(ii) file as soon as practicable, and subject to in any event within sixty (60) days of the limitations receipt of this Section 1.2such request, and use all commercially reasonable its best efforts to effect, cause to become effective as soon as practicable, the registration under the Act of all Registrable Securities that which the Holders request to be registered as specified in a written request received by the Company within twenty (20) days after such written notice from the Company is mailed or delivered, subject to the limitations of the mailing of the Company’s notice pursuant to this Section 1.2(aSubsection 1.2(b).
(b) If the Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, Subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section Subsection 1.2(a). The underwriter will be selected by the Company and shall be acceptable to a majority in interest of the Initiating Holders. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting underwriting. Whenever a registration is demanded pursuant to this Section 1.2, the Company may not include in such registration securities for offering by those Initiating the Company and any other holder of securities without the prior written consent of the Holders holding a majority at least fifty percent (50%) of the Registrable Securities held covered by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)their request. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders exclude from such underwriting (x) first, the maximum number of securities, if any, other than Registrable Securities, as is necessary to reduce the size of the offering and (y) then the minimum number of Registrable Securities that would otherwise be underwritten pursuant heretoSecurities, and the number of shares that may be included in the underwriting shall be allocated pro rata to the Holders extent practicable, on the basis of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including requested to be registered among the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder participating holders of Registrable Securities that Securities, as is a venture capital fund (or other investment fund), partnership or corporation, necessary in the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any opinion of the foregoing persons shall be deemed managing underwriter(s) to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from reduce the registrationsize of the offering.
(c) Notwithstanding the foregoingIn addition, the Company shall not be required obligated to effect a effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) in In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification, or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required under by the Act; or;
(ii) after After the Company has effected two one (21) registrations registration pursuant to this Section 1.2, excluding any registrations effected on Form S-3, and such registrations have registration has been declared or ordered effective; or;
(iii) during If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.11 below;
(iv) If the Company delivers to the Initiating Holders an opinion, in form and substance acceptable to such Initiating Holders, of counsel satisfactory to the Initiating Holders that the Registrable Securities requested to be registered by the Initiating Holders may be sold or transferred without restriction pursuant to Rule 144(k) of the Act;
(v) During the period starting with the date sixty (60) days prior to the Company’s 's good faith estimate of the date of the filing of of, and ending on (A) a date one hundred eighty ninety (18090) days following after the effective date or (B) the date of abandonment of, a Company-initiated registration subject statement relating to Section 1.3 belowthe offering of any of the Company's securities; provided, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(ivvi) if If the Initiating Holders propose to dispose Company reasonably anticipates that it will consummate, within sixty (60) days after the date of Registrable Securities that may be registered on Form S-3 receipt of any request pursuant to this Section 1.4 hereof; or
(v) if 1.2, a significant business transaction that would be materially adversely affected, to the Company shall furnish to Holders requesting material detriment of the Company, by a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that (all in the good faith judgment of the Board of Directors determination of the Company's Board of Directors); provided, it would be seriously detrimental that the registration statement relating to the Company and its stockholders for such registration statement request pursuant to this Section 1.2 shall be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more filed no later than ninety sixty (9060) days after the closing (or any such similar event) of agreements or documents consummating such transaction or the abandonment of such transaction, but in any event not later than 120 days after the receipt of the request of the Initiating Holderspursuant to this Section 1.2; and provided, provided further, that such right shall be exercised by the Company shall not be permitted to delay, pursuant to this Section 1.2(c)(vi) or Section 1.2(c)(v), its obligations pursuant to this Section 1.2 more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 1 contract
Sources: Investor's Rights Agreement (Ientertainment Network Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) at least 35% or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty forty (2040) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the such underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). If any Holder disapproves of the terms of the underwriting, the Holder may elect to withdraw therefrom by written notice to the Company and the underwriter and the Registrable Securities and/or other securities so withdrawn shall also be withdrawn from registration; provided, however, that, if by the withdrawal of such Registrable Securities, a greater number of Registrable Securities held by others participating in the underwriting may be included in such registration, then the Company shall allocate such greater number of Registrable Securities to such parties in proportion, as nearly as practicable, to the respective amount of Registrable Securities held by such parties. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares Equity Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities of the Company are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. For purposes of this Section 1.2, a registration shall not be counted as effected if, as a result of an exercise of the underwriter’s cutback, fewer than 50% of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or;
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, ; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer Manager (or Chairman of the Board of Directors chief executive officer, if applicable) stating that in the good faith judgment of the Board Management Committee (or board of Directors directors, if applicable) of the Company, it would be seriously detrimental to the Company and its stockholders members (or stockholders, if applicable) for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and 12)-month period; provided further that the Company shall not register any securities for the account of itself or any other member (or stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, if applicable) during such ninety one hundred twenty (90120) day period (other than a registration relating solely to the sale of securities of participants in a Company stock equity incentive plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock Equity Securities being registered is Common Stock are common equity issuable upon conversion of debt securities that are also being registered). In the event the Company makes the determination contemplated by this Section 1.2(c)(v), the Initiating Holders shall be entitled to withdraw their request for registration under this Section 1.2 without impairing their right to request registration thereafter.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at At any time after until July 27, 2026, the earlier of (i) five (5) years after the date of this Agreement Initiating Holders may request in writing that all or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more part of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Shares held by such requesting Initiating Holders”) that the Company file a registration statement Holders shall be registered under the Act covering Securities Act. Any such demand must request the registration of Registrable Securities shares with an anticipated gross aggregate offering price of at least $10,000,0005,000,000.
(b) Within ten (10) days after receipt of any such request, then the Company shall, within twenty (20) days of the receipt thereof, shall give written notice of such request to all the other Holders, the Common Holders and subject to the limitations holders of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the Other Registrable Shares and shall include in such registration under the Act of all Registrable Securities that the Shares held by all such Holders, all Common Registrable Shares held by Common Holders request and Other Registrable Shares held by holders of Other Registrable Shares who wish to be registered participate in a written request received by such demand registration and provide the Company with written requests for inclusion therein within twenty fifteen (2015) days of after the mailing receipt of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationnotice.
(c) Notwithstanding Thereupon, the foregoingCompany shall use its reasonable commercial efforts to effect the registration of all Registrable Shares, Common Registrable Shares and Other Registrable Shares as to which it has received requests for registration for trading on the securities exchange specified in the request for registration; provided, however, that the Company shall not be required to effect any registration under this Section 3:
(i) within a period of one hundred and eighty (180) days following the effective date of a previous registration pursuant to this Section 1.2:3 or pursuant to Section 2, provided the Holders were eligible to participate in such previous registration pursuant to Section 2;
(iii) If at the time of the request from the Initiating Holders the Company gives notice within thirty (30) days of such request that it is engaged in preparation of a registration statement or prospectus supplement, as the case may be, for a firm underwritten registered public offering (for which the registration statement or prospectus supplement will be filed within ninety (90) days) in which the Holder may include Registrable Shares pursuant to Section 2 above (subject to underwriting limitations provided under subsection 2.2(a));
(iii) more than twice under this Section 3, provided that a registration shall not be counted for purposes of this subsection until such time as the applicable registration statement has been declared effective by the SEC and maintained for the period specified in Section 5.8(a) hereunder; or
(iv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, unless the qualification or compliance. The Company is already subject shall be entitled to service include shares of Common Stock for sale for its own account in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations any registration pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior 3 subject to the Company’s good faith estimate approval of the date holders of a majority of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed Shares held by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after June 30, 1998 and at such time as both of the earlier of following circumstances shall exist: (i) five (5) years after the date Company shall have generated total revenues of this Agreement or at least $25,000,000 for the 12 consecutive month period ending on the last day of the calendar month immediately prior to such time and (ii) six the Company's income from operations, calculated in accordance with generally accepted accounting principles (6"GAAP") months after and on a basis consistent with the effective date of Company's past practices and procedures, shall have been greater than zero for the Initial Offeringtwo most recent fiscal quarters immediately prior to such time, a written request from the Holders of thirty more than 20% percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) on that date that the Company file a registration statement under the Act covering the registration of at least thirty percent of the Registrable Securities with an anticipated aggregate offering price of at least $10,000,000then outstanding, then the Company shall, within twenty (20) ten days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially its reasonable efforts to effect, effect as soon as practicable, and in any event within 90 days of the receipt of such request, the registration under the Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) 20 days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)3.6.
(b) If the Initiating Holders initiating the registration request hereunder ("INITIATING HOLDERS") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by a majority in interest of the Initiating Holders (calculated based upon the number of Registrable Securities beneficially owned by each Initiating Holder at the time the request shall be made) and shall be reasonably acceptable to the Company and Oracle. In such event event, the right of any Holder to include its such Holder's Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities that are to be sold in such offering in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of in accordance with the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)foregoing. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company and the Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, in each case in proportion (as nearly as practicable) to the Holders of such Registrable Securities pro rata based on the number amount of Registrable Securities held of the Company owned by all such Holders (including each Holder electing to participate in the Initiating Holders). In no event shall any underwriting; provided, however, that the Registrable Securities to be included in such Underwriting shall not be reduced unless all securities (other than Registrable Securities) are first entirely excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; PROVIDED, provided HOWEVER, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 1.2:
(i) After the account Company has effected one registration pursuant to this Section 1.2 and such registration shall have been declared or ordered effective; or
(ii) During the period starting with the date 60 days prior to the Company's good faith estimate of itself or any other stockholderthe date of filing of, and shall not register any securities that are not Registrable Securities for ending on a date 180 days after the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planeffective date of, a registration relating subject to a corporate reorganization or transaction under Rule 145 of Section 1.3 hereof; PROVIDED that the Act, a registration on any form that does not include substantially the same information as would be required Company is actively employing in good faith all reasonable efforts to be included in a cause such registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)to become effective.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or June 9, 2021 and (ii) six one hundred eighty (6180) months days after the effective date of the Initial Offering, a written request from the Holders of thirty fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price price, before underwriting discounts, commissions and fees, of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company in writing that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2If, if the Company shall receive at any time after the earlier of (i) five (5) years after the second anniversary of the date of this Agreement or (ii) six one hundred eighty (6180) months days after the effective date initial public offering of the Initial OfferingCompany's securities, the Company shall receive a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) Qualifying Request that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Act, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.22(b) below, use all commercially reasonable its best efforts to effect, prepare and file with the SEC as soon expeditiously as practicable, and in any event within sixty (60) days of the receipt of such request, a registration statement under the Securities Act of with respect to all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)19 below.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 2 and the Company shall include such information in the written notice referred to in Section 1.2(a2(a). In such event event, the right of any Holder to include its such Holder's Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. A majority in interest of the Initiating Holders shall select the managing underwriter or underwriters in such underwriting subject to approval by the Company, which approval shall not be unreasonably withheld. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Section 4(f)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders Holders; PROVIDED, HOWEVER, that none of the JPM Investors (which underwriter or underwriters any of their Permitted Transferees) or Clipper Investors (or any of their Permitted Transferees) shall be reasonably acceptable required to make any representations or warranties except as they relate to such Holder's ownership of shares and authority to enter into the underwriting agreement and to such Holder's intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the Company)net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 1.22, if the underwriter advises the Company Initiating Holders that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Initiating Holders shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to as follows: (i) eighty percent (80%) of such number of shares shall be allocated among the Holders of Registrable Investor Securities that have elected to participate in such Registrable Securities underwritten offering, pro rata based on according to the number of Registrable Investor Securities held by all each such Holder, and (ii) twenty percent (20%) of such number of shares shall be allocated among the Holders (including of Registrable Founder Securities that have elected to participate in such underwritten offering, pro rata according to the number of Registrable Founder Securities held by each such Holder. Without the consent of a majority in interest of the Initiating Holders). In , no event shall any securities other than Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from covered by such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required obligated to effect a registration pursuant to this Section 1.2:
only three (i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (23) registrations pursuant to this Section 1.22 (an offering which is not consummated for any reason shall not be counted for this purpose); PROVIDED, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 belowHOWEVER, provided that the Company is actively employing shall be obligated to effect as many registrations as may be requested by Holders of Registrable Investor Securities pursuant to any Qualifying Request in good faith all commercially reasonable efforts the event and so long as (i) registration pursuant to cause such Form S-3 or any similar "short-form" registration statement is available and (ii) the registration covers Registrable Securities which, together with other securities of the Company entitled to become effectiveinclusion in such registration, are proposed to be sold at an aggregate price to the public of not less than five million dollars ($5,000,000). The Company shall not be obligated to effect more than one (1) registration (other than "short-form" registrations pursuant to Form S-3 or any similar "short-form" registration statement) pursuant to this Section 2 in any twelve (12) month period. If any registration is commenced pursuant to this Section 2 and is not consummated for any reason whatsoever (a "Failed Registration"), such Failed Registration shall not be deemed to constitute a registration under this Section 2(c) and the Holders shall retain their rights pursuant to this Section 2 to make Qualifying Requests; orPROVIDED, HOWEVER, that expenses in connection with any Failed Registration shall be paid in accordance with Section 6 hereof.
(ivd) if Notwithstanding the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed by reason of a material pending transaction and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; PROVIDED, provided HOWEVER, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from (i) prior to a Holdings Liquidation, Holdings, (ii) on or after the time of a Holdings Liquidation, Holders holding at least a majority of those Registrable Securities then outstanding that were distributed in respect of Series C Preferred Units in such Holdings Liquidation (the “Majority Series C Holdings Holders”), (iii) on or after the time of a Holdings Liquidation, Holders holding at least a majority of those Registrable Securities then outstanding that were distributed in respect of Series B Preferred Units in such Holdings Liquidation (the “Majority Series B Holdings Holders”) or (iv) the Holders of thirty percent (30%) or more Series D Registrable Securities then holding at least a majority of the Series D Registrable Securities then outstanding (for purposes of clauses (i), (ii), (iii) and (iv) of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their its request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on in the number of following order: (i) first, the Series D Registrable Securities held by all such Holders the Investors, if any are requested to be underwritten, as determined on a pro rata basis (including based on the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not respective holdings of Series D Registrable Securities held by Holders. For purposes of this Section 1.2(bsuch Investors); (ii) then, any Holder of the Registrable Securities that is a venture capital fund held by Holdings, if any are requested to be underwritten; (or other investment fund), partnership or corporationiii) third, the venture capital funds (or other investment funds)Registrable Securities, partnersif any, retired partners and stockholders that are Affiliates distributed to holders of Series C Preferred Units at the time of a Holdings Liquidation, if any are requested to be underwritten, as determined on a pro rata basis (based on the respective holdings of such Holderdistributed Registrable Securities held by such Holders); (iv) fourth, or the estates and family members Registrable Securities, if any, that are distributed to holders of Series B Preferred Units at the time of a Holdings Liquidation, if any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed are requested to be underwritten, as determined on a single pro rata basis (based on the respective holdings of distributed Registrable Securities held by such Holders); (v) fifth, the Registrable Securities, if any, that are distributed to holders of Series A Preferred Units at the time of a Holdings Liquidation, if any are requested to be underwritten, as determined on a pro rata basis (based on the respective holdings of distributed Registrable Securities held by such Holders) and (vi) sixth, the Registrable Securities, if any, that are distributed to holders of Common Units at the time of a Holdings Liquidation, if any are requested to be underwritten, as determined on a pro rata basis (based on the respective holdings of distributed Registrable Securities held by such Holders) (the “HolderRegistration Cutback Order”). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iviii) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month 12)-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety one hundred twenty (90120) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (a) Subject to the conditions provisions of this Section 1.23(b) hereof, if the Company shall receive at any time after six months following the earlier consummation of an underwritten public offering under the Securities Act by the Company of its Common Stock, each of GLY and the ▇▇▇▇▇▇▇ Group may make a written request to the Company for registration under and in accordance with the provisions of the Securities Act of all or part (but not less than 20%) of the Registrable Securities owned by such Holder or Holders (a “Demand Registration”) provided (i) that the value of shares of Common Stock proposed to be registered (based upon the proposed gross offering price thereof net of selling expenses) is at least $5,000,000 and (ii) that at least twelve (12) months shall have elapsed since the last time a Demand Registration has been requested by such Holder under this Section 3(a) if such a request has previously been made by such Holder under this Section 3(a). Within five (5) years Business days after receipt of such request, the date Company shall give written notice (the “Notice”) of such request to all other Holders and will include in such registration all Registrable Securities with respect to which the Company receives written requests for inclusion therein within twenty (20) business days after it gives the Notice to the applicable Holder. The Company shall be entitled to include in any Registration Statement referred to in this Agreement or Section 3, for sale in accordance with the method of disposition specified by the requesting Holders, shares of Common Stock to be sold by the Company for its own account, except as and to the extent that, in the opinion of the managing underwriter (iiif such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Securities to be sold. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 3(a) six (6) months within 120 days after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received Registration Statement filed by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as covering a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities firm commitment underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction public offering in which the Company would be required to execute a general consent to service holders of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations Registerable Securities shall have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior entitled to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 join pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company 4 and its stockholders for such registration statement to be effected at such time, in which event the Company there shall have the right been effectively registered all shares of Registerable Securities as to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right which registration shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)have been requested.
Appears in 1 contract
Sources: Registration Rights Agreement (Ness Technologies Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement [April , 2012] or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority two-thirds (2/3rds) in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority two-thirds (2/3rds) in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two three (23) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month 12)-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety one hundred twenty (90120) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, or a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement January 26, 2001, or (ii) six twelve (612) months after the effective date consummation of the Company's Initial Public Offering, a written request from the Holders of thirty forty percent (3040%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate gross offering price of at least ten million dollars ($10,000,000), then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially reasonable efforts to effect, effect as soon as practicable, and in any event shall use its best efforts to effect within one hundred twenty (120) days of the receipt of such request, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant to this Section 1.2(a).
(b) If the Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter or underwriters will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the managing underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise requesting to be underwritten pursuant heretoincluded in the underwriting, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders requesting to be included in the underwriting, in proportion (as nearly as practicable) to the Holders amount of such Registrable Securities pro rata based on of the Company owned by each Holder at the time of filing the registration statement; provided, however, that the number of shares of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities securities, including, without limitation, any shares offered by the Company, are first excluded, including securities that are not Registrable Securities held by Holdersentirely excluded from the underwriting. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any No Registrable Securities excluded or withdrawn from such the underwriting by reason of the managing underwriters' marketing limitation shall be withdrawn from included in such registration. To facilitate the registrationallocation of Shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) Shares.
(c) Notwithstanding the foregoing, the The Company shall not be required is obligated to effect a only one (1) registration pursuant to this Section 1.2:
1.2 (i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) counting for this purpose only registrations pursuant to this Section 1.2, and such registrations that have been declared or ordered effective; oreffective and pursuant to which Registrable Securities have been sold).
(iiid) during Notwithstanding the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 belowforegoing, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and that it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company not more than may defer its obligations for this reason only once in any twelve (12) month period and provided further that period.
(e) Notwithstanding anything to the contrary in this Section 1.2, the Company shall not register any securities be obligated to take an action to effect such registration pursuant to this Section 1.2 for a period of six (6) months following the account effective date of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for a registration statement previously filed by the account of any Holder, during such ninety (90) day period Company (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under SEC Rule 145 transaction or with respect to an employee benefit plan).
(f) If any registration statement prepared pursuant to this Section 1.2 is not filed or does not become effective or fails to close as a result of the Actdecision of the Initiating Holders or any underwriter designated by them, a registration on any form that does not include substantially the same information as would be required obligation of the Company to be included in prepare and file a registration statement covering at the sale request of such Initiating Holders shall nevertheless have been satisfied unless such Initiating Holders shall reimburse the Company for its registration expenses set forth in Section 1.6 herein incurred in connection with the preparation and filing of such registration statement. If the registration statement otherwise fails to become effective or fails to close, the registration rights of the Registrable Securities, or a Holders provided in Section 1.2 shall remain fully available as if the registration in which had not been requested by the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Initiating Holders.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) 5 years after the date of this Agreement or (ii) six (6) months 180 days after the effective date of the Initial Offering, Company’s IPO a written request from the Holders of thirty at least forty percent (3040%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an a reasonably anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company shall, :
(i) within twenty ten (2010) days of the receipt thereof, thereof give written notice of such request to all Holders;
(ii) as soon as practicable, and in any event within 60 days of the receipt of such request, file a registration statement under the Securities Act covering all Registrable Securities which the Holders request to be registered, subject to the limitations of this Section 1.2subsection 2.1(b), use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant Company in accordance with Section 3.2; and
(iii) use all commercially reasonable efforts to this Section 1.2(a)cause such registration statement to be declared effective by the SEC as soon as practicable.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, subsection 2.1(a) and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 2.1(a). The underwriter will be selected by the Company and shall be reasonably acceptable to the Initiating Holders). In such event event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 2.3(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, 2.1 if the underwriter advises the Company in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities held by all such the Holders (including the Initiating Holders). In no event shall any Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excludedentirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, including securities that are not Registrable Securities held by Holders. For purposes the Company or the underwriters may round the number of this Section 1.2(b), shares allocated to any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, to the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationnearest 100 shares.
(c) Notwithstanding the foregoing, the The Company shall not be required obligated to effect a registration effect, or to take any action to effect, any registration
(i) pursuant to this Section 1.2:2.1;
(A) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Securities Act;
(B) After the Company has effected two registrations pursuant to this Section 2.1 and such registrations have been declared or ordered effective, provided that a registration shall not be counted (i) until such time as such registration statement has been declared effective by the SEC (unless the Initiating Holders withdraw their request for such registration (other than as a result of information concerning the business or financial condition of the Company which is made known to the Investors after the date on which such registration was requested) and elect not to pay the registration expenses therefor pursuant to Section 2.5) or (ii) if, as a result of an exercise of the underwriter’s cut-back provisions, fewer than 50% of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(C) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.11 below;
(D) If the Registrable Securities to be included in the registration statement could be sold without restriction under SEC Rule 144(k); or
(E) during the period starting with the date 60 days prior to the Company’s good faith estimate of the date of the filing of and the ending on date 180 days following the effective date of a Company-initiated registration subject to Section 2.2 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement effective; or
(ii) pursuant to any other provision of this Agreement;
(A) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Securities Act; or
(iiB) after If the Company has effected two (2) registrations pursuant Registrable Securities to this Section 1.2, and such registrations have been declared or ordered effective; orbe included in the registration statement could be sold without restriction under SEC Rule 144(k).
(iiid) during Notwithstanding the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 belowforegoing, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously materially detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore necessary to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) twelve-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration statement relating solely either to the sale of securities to employees of participants in a the Company stock plan, a registration relating pursuant to a corporate reorganization stock option, stock purchase or transaction under similar plan or an SEC Rule 145 of the Acttransaction, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable SecuritiesSecruities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (a) Subject to If, at any time following the conditions nine-month anniversary of, and until the seven-year anniversary of, the date of this Section 1.2Closing of the Securities Purchase Agreement, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Initiating Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an where the anticipated aggregate offering price price, net of underwriting discounts and commissions, of Registrable Securities to be sold is at least $10,000,0003,000,000, then the Company shall, within twenty (20) 10 days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially reasonable its best efforts to effect, effect as soon as practicable, and in any event within one hundred and twenty (120) days of the receipt of such request, the registration under the Securities Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) 20 days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)3.4.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company initially sought to be excluded from registered by each Holder; PROVIDED, HOWEVER, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected effective at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; PROVIDED, provided HOWEVER, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register be obligated to effect, or to take any securities action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected two registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective and maintained effective for at least 120 days (or less if the account distribution contemplated in the registration statement has been completed);
(ii) During the period ending (A) 12 months after the effective date of itself a registration subject to Section 1.2 hereof or (B) 180 days after the effective date of any other stockholderregistration statement pertaining to Ordinary Shares of the Company, and shall not register any securities that or such shorter periods if such shorter periods are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely acceptable to the sale underwriters of securities of participants such offering;
(iii) In any jurisdiction in a which the Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be included in required by the Securities Act or applicable rules or regulations thereunder; or
(iv) If such request does not cover shares representing a registration statement covering market value at the sale time of the Registrable Securities, or such request equal to a registration in which the only Common Stock being registered is Common Stock issuable upon conversion minimum of debt securities that are also being registered)$3,000,000.
Appears in 1 contract
Sources: Registration Rights Agreement (Vocaltec Communications LTD)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of three (i) five (5) years after the date of this Agreement or (ii) six (63) months after the effective date 90 days after the closing of the Initial Offeringreverse merger into a public shell, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of at least forty percent (40%) of the Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then outstanding then the Company shall, :
(i) within twenty ten (2010) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, ; and
(ii) effect as soon as practicable, and in any event within 150 days of the receipt of such request, effect the registration under the Act of all Registrable Securities that which the Holders request to be registered in a written request received by registered, subject to the Company limitations of subsection 6.2(b), within twenty (20) days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)7.5.
(b) If the Holders initiating the registration request hereunder (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, subsection 6.2(a) and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 6.2(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 6.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.26.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities securities, including Company securities, are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 6.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 6.2:
(i) After the account Company has effected one registration pursuant to this Section 6.2 and such registrations has been declared or ordered effective;
(ii) During the period starting with the date 30-60 days prior to the Company’s good faith estimate of itself or any other stockholderthe date of filing of, and shall not register any securities that are not Registrable Securities for ending on a date one hundred eighty (180) days after the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planeffective date of, a registration relating subject to Section 6.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 6.12 below.
Appears in 1 contract
Sources: Stock Purchase Agreement (Norpac Technologies, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement October 28, 2021, or (ii) six (6) months after the effective date of the an Initial OfferingOffering or Direct Listing (whichever occurs first), a written request from the Holders of thirty twenty-five percent (3025%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a1.2a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a1.2a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated Company‑initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).to
Appears in 1 contract
Sources: Investors’ Rights Agreement (Slack Technologies, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive receive, at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Public Offering, a written request from the Holders of thirty percent (30%) or more a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000twenty percent (20%) of the then outstanding Registrable Securities, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in this Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis (as nearly as practicable) based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In , provided that no event shall any Registrable Securities shall be excluded from such underwriting unless and until all other issued and outstanding securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”Company have been excluded. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoingIn addition, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective;
(ii) If the Company has effected a registration pursuant to this Section 1.2 within the preceding twelve (12) months, and such registration has been declared or ordered effective;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred eighty (180) days following the effective date of, a Company-initiated registration subject to Section 1.3, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4;
(v) if the Company shall furnish to Holders requesting a registration pursuant to this Section 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders; or
(vi) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2At any time after November 22, 2006, if the Company shall receive at any time after the earlier of a written request from (i) five the Holders of at least 30% of the shares of Common Stock issued or issuable upon the conversion of the Series A Preferred Stock (5the “Preferred Initiating Holders”) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (at least 30%) or more % of the Registrable Securities then outstanding shares of Common Stock issuable upon the exercise of the ABRY Warrants (for purposes of this Section 1.2, the “ABRY Initiating Holders”) ), that the Company file a effect the registration statement under the 1933 Act covering the registration of all or any portion of such Holders’ Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty (20) five days of the receipt thereof, give written notice of such request to all Holders, and shall, subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, effect such a registration as soon as practicablepracticable and in any event to file within 90 days of the receipt of such request, the a registration statement under the 1933 Act of covering all the Registrable Securities that which the Holders shall in writing request to be registered to be included in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant such registration and to this Section 1.2(a)use its best efforts to have such registration statement become effective.
(b) If the Preferred Initiating Holders or the ABRY Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed upon by a majority in interest of the Preferred Initiating Holders or the ABRY Initiating Holders, as the case may be, and such Holder) to the extent provided herein. All Holders parties proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Section 1.4(d)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriters. Notwithstanding any other provision of this Section 1.2, if if, in the case of a registration requested by the Preferred Initiating Holders pursuant to Section 1.2(a)(i), the underwriter advises the Company Preferred Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Preferred Initiating Holders shall so advise the Company and all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and all securities other than Registrable Securities sought to be included in the underwriting shall first be excluded. To the extent that further limitation is required, all securities held by the Holders other than the Preferred Initiating Holders shall then be excluded. If further limitation is required, the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on among all Preferred Initiating Holders thereof desiring to participate in such underwriting (according to the number of Registrable Securities then held by all each such Holders (including the Preferred Initiating HoldersHolder). In no event shall any No Registrable Securities requested by any Preferred Initiating Holder to be included in a registration pursuant to Section 1.2(a)(i) shall be excluded from such the underwriting unless all securities other securities are first excluded, including securities that are not than Registrable Securities held by HoldersPreferred Initiating Holders are first excluded. For purposes Notwithstanding any other provision of this Section 1.2(b1.2, in the case of a registration requested by the ABRY Initiating Holders pursuant to Section 1.2(a)(ii), any Holder the underwriter advises the ABRY Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the ABRY Initiating Holders shall so advise the Company and all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and all securities other than Registrable Securities sought to be included in the underwriting shall first be excluded. To the extent that further limitation is required, the number of Registrable Securities that is a venture capital fund may be included in the underwriting shall be allocated pro rata among all Holders thereof desiring to participate in such underwriting (or other investment fund), partnership or corporation, according to the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates number of Registrable Securities then held by each such Holder, or ); provided that in no event shall such pro rata allocation reduce the estates and family members of any such partners and retired partners and any trusts for Registrable Securities proposed to be registered by the benefit of any ABRY Initiating Holders by an amount that is less than 50% of the foregoing persons amount of Registrable Securities that the ABRY Initiating Holders initially proposed to register pursuant to Section 1.2(a)(ii). No Registrable Securities requested by any Holder to be included in a registration pursuant to Section 1.2(a)(ii) shall be excluded from the underwriting unless all securities other than Registrable Securities are first excluded.
(c) The Company is obligated to effect only (i) two registrations pursuant to Section 1.2(a)(i) and (ii) one registration pursuant to Section 1.2(a)(ii); provided, however, that no registration pursuant to Section 1.2(a)(i) or Section 1.2(a)(ii) shall be deemed to be a single “Holder”. Any registration for any purpose of this sentence if (x) the number of Registrable Securities excluded or withdrawn from included in the underwriting does not equal of the number of Registrable Securities proposed by the Holders to be distributed through such underwriting or (y) the Holders pay all expenses of such registration, including those otherwise payable by the Company in accordance with Section 1.6; and provided, further, that no registration of Registrable Securities which shall not have become and remained effective in accordance with Section 1.4 shall be deemed to be a registration for any purpose of this Section 1.26(c) unless such registration was withdrawn from at the registrationrequest of the Holders except under the circumstances described in the second proviso in the first sentence of Section 1.6 hereof.
(cd) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to foregoing provisions of this Section 1.2:
(i) , in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless event that the Company is already subject requested to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations file any registration statement pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iiii) during the period starting with the date sixty (60) days prior Company shall not be obligated to the Company’s good faith estimate of the date of effect the filing of and ending on a date one hundred eighty (180) such registration statement during the 90 days following the effective date of a Company-initiated any other registration subject statement on Form S-1 pertaining to Section 1.3 below, provided that an underwritten public offering of securities for the account of the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
or any Holder or (iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(vii) if the Company shall furnish to the Holders requesting a such registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors (as evidenced by a written resolution of the Board of Directors of the Company), it would not be seriously detrimental to in the best interests of the Company and its stockholders generally for such registration statement to be effected at such timefiled, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 45 days after receipt of the request of the Preferred Initiating Holders or the ABRY Initiating Holders, provided as the case may be; provided, however, that such right shall be exercised by the Company may not utilize the right set forth in this Section 1.2(d)(ii) more than once in any twelve twelve-month period.
(12e) month period Each registration requested pursuant to Section 1.2(a)(i) and provided further that Section 1.2(a)(ii) shall be effected by the Company shall filing of a registration statement on Form S-1 or Form S-2 (or if such forms are not register any securities for the account of itself or available, any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include which includes substantially the same information (other than information which is incorporated by reference) as would be required to be included in a registration statement covering on such forms as currently constituted), or, if available, Form S-3, unless the sale use of a different form is consented to (i) in the case of a registration requested pursuant to Section 1.2(a)(i), by the Preferred Initiating Holders holding a majority of the Registrable SecuritiesSecurities held by all Preferred Initiating Holders or unless another form would be equally effective, as determined by the Preferred Initiating Holders in their sole discretion or (ii) in the case of a registration requested pursuant to Section 1.2(a)(ii), by the ABRY Initiating Holders holding a majority of the Registrable Securities held by all ABRY Initiating Holders or unless another form would be equally effective, as determined by the ABRY Initiating Holders in their sole discretion.
(f) In connection with any registration pursuant to Section 1.2(a), the Initiating Holders or the ABRY Initiating Holders, as the case may be, shall have the right to designate the lead managing underwriter and any other managing underwriters in connection with such registration, provided that in each case, such underwriters shall be subject to the approval of the Board of Directors of the Company, which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)approval shall not be unreasonably withheld or delayed.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.21.3, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement July 10, 2008, or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.21.3, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.21.3, use all commercially reasonable its best efforts to effectfile, as soon as practicable, and in any event within ninety (90) days of the receipt of such request, a registration statement under the Act of covering all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a1.3(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.3 and the Company shall include such information in the written notice referred to in Section 1.2(a1.3(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority two-thirds in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.21.3, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated as follows: first, to the Holders holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders)) and second, to the other securities to be included in such registration. In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.21.3:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or;
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.21.3, and such registrations have been declared or ordered effective; or;
(iii) during the period starting with the date sixty ninety (6090) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date ninety (90) days after the effective date of, a registration subject to Section 1.4 hereof, unless such offering is the Initial Offering, in which case, ending on a date one hundred eighty (180) days following after the effective date of a Company-initiated such registration subject to Section 1.3 below1.4, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; oreffective and provided, in the case of a public offering other than the Initial Offering, that the Initiating Holders were permitted to register such shares as requested to be registered pursuant to Section 1.4 hereof without reduction by the underwriter thereof;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to Section 1.4 1.5 hereof; or
(v) if the Company shall furnish to Holders within thirty (30) days after requesting a registration statement pursuant to this Section 1.2 1.3, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 1 contract
Sources: License Agreement (Inogen Inc)
Request for Registration. (a) Subject to If the conditions of this Section 1.2, if the Company Partnership shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) Holder that the Company file a Partnership effect the registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,0001933 Act, then the Company shallPartnership agrees to, within twenty (20) five days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, effect such a registration as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request practicable and in any event to be registered in a written request received by the Company file within twenty (20) 90 days of the mailing receipt of such request a registration statement under the 1933 Act covering all the Registrable Securities which Holder shall in writing request (given within 20 days of receipt of the Company’s notice given by the Partnership pursuant to this Section 1.2(a)) to be included in such registration and to use its best efforts to have such registration statement become effective.
(b) If the Initiating Holders intend Holder submits a registration request hereunder and intends to distribute the Registrable Securities covered by their a registration statement filed pursuant to that request by means of an underwriting, they it shall so advise the Company Partnership as a part of their its request made pursuant to this Section 1.2, and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s its participation in such underwriting and the inclusion of such Holder’s its Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting Holder shall (together with the Partnership as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be Holder and reasonably acceptable satisfactory to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationPartnership.
(c) Notwithstanding the foregoing, (i) the Company Partnership may, but shall not be required to obligated to, effect the filing of a registration statement pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) 1.2 during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) 90 days following the effective date of a Company-initiated registration subject statement pertaining to Section 1.3 belowan underwritten public offering of securities for the account of the Partnership, provided that the Company Partnership is actively employing in good faith at all commercially reasonable efforts to cause times during such registration statement to become effective; or
period diligently pursuing such registration, and (ivii) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company Partnership shall furnish to Holders Holder requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors General Partner stating that in the good faith judgment of the Board of Directors General Partner on behalf of the CompanyPartnership, it would not be seriously detrimental to in the Company best interests of the Partnership and its stockholders limited partners generally for such registration statement to be effected at such timefiled, in which event the Company Partnership shall have the right to defer such filing for a period of not more than ninety (90) 210 days after receipt of the request of Holder; provided, however, that the Initiating Holders, provided that such Partnership may not utilize the right shall be exercised by the Company not set forth in this subsection (d) (ii) more than once in any twelve (12) twelve-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 1 contract
Sources: Registration Rights Agreement (American Real Estate Partners L P)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,0005,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Initiating Holders and all other Holders with remaining registration rights under this Section 1.2 who elect to join in the demand registration (collectively, the “Registering Holders”) request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyRegistering Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities as follows: First, to the Registering Holders and the Company (in the event that the Company also desires to sell securities in such offering); provided that in no event shall the Registering Holders be cut back to less than 50% of the aggregate securities to be sold in the offering; and second, to other Holders of Registrable Securities requesting inclusion in the offering. If either the Registering Holders or the other Holders of Registrable Securities are prevented from selling all securities which they desire to sell as a result of the foregoing cut back provisions, any such cut back shall be on a pro rata basis based on the number of Registrable Securities held owned by all such the respective Registering Holders (including in the Initiating case of cut backs limiting sales by the Registering Holders) or other Holders of the Registrable Securities (in the case of cut backs not limiting sales by the Registering Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. If any of the Registering Holders is required to cut back the amount of Registrable Securities which such Holder desires to sell, such Holder shall have the right to withdraw its request for registration, in which case none of its Registrable Securities shall be registered as part of the offering and the offering shall not be deemed to have utilized one of such Holder’s registration rights pursuant to Section l.2(c)(ii).
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty forty five (6045) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (1212)-month period; or
(vi) month period and provided further that if, within thirty (30) days of any registration request pursuant to this Section 1.2, the Company shall not register any securities delivers notice to the Holders requesting such registration of its intent to file a registration for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such initial offering within ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)days.
Appears in 1 contract
Sources: Investors' Rights Agreement (Design Within Reach Inc)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial OfferingOffering and (ii) thirty (30) months after the date of this Agreement, a written request from the Holders of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00015,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)12)-month period.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after subsequent to the earlier of (i) five (5) years after the date of this Agreement September 30, 2011, or (ii) six (6) months after following the effective date completion of the Initial OfferingCompany’s firm commitment underwritten initial public offering, a written request from the Holders of thirty percent (30%) or more not less than 50% of the Registrable Securities then outstanding (for purposes that would result in the filing of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of such Registrable Securities with having an anticipated aggregate offering price to the public of at least $10,000,0005,000,000, then the Company shall, :
(i) within twenty fifteen (2015) days of the receipt thereof, give written notice of such request to all Holders; and
(ii) use its best efforts to file, and subject to the limitations of this Section 1.2reasonable, use all commercially reasonable diligent efforts to effect, as soon as practicable, and in any event to file the initial registration statement in connection therewith within 90 days of the receipt of such request, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) 20 days of the mailing of notice by the Company’s notice pursuant Company referenced in Section 1.2(a)(i) above, subject to this Section 1.2(athe limitations of subsection 1.2(b).
(b) If the Holders initiating the registration request hereunder (the “Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section 1.2(asubsection 1.2(a)(i). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the Holders amount of such Registrable Securities pro rata based on of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities held by all such Initiating Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from included in such underwriting shall not be withdrawn reduced unless all securities other than Registrable Securities are first entirely excluded from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timefiled, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) to exceed 90 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 1.2:
(i) After the account of itself Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective;
(ii) Within six (6) months after any other stockholder, and shall not register any securities that are not Registrable Securities for registration by the account of any Holder, during such Company under the Act;
(iii) During the period starting with the date ninety (90) day period days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred and eighty (other than 180) days after the effective date of a registration relating solely subject to Section 1.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and the Company delivers notice of such intent to the sale Initiating Holders within thirty (30) days of securities the registration request; or
(iv) If the Initiating Holders propose to dispose of participants in a Company stock plan, a registration relating shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 1.12 below.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Guidewire Software, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.22.1, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement September 4, 2023 or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty fifty percent (3050%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.22.1, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00050,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.22.1, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a2.1(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.22.1, and the Company shall include such information in the written notice referred to in Section 1.2(a2.1(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to those Initiating Holders holding a majority of the Registrable Securities then held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 1.22.1, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.22.1:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.22.1, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 2.2 below, provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 2.3 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 2.1 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, ; provided that such right shall be exercised by the Company not more than once in any twelve (12) month period period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request (the “Initial Request”) from the Holders of thirty twenty percent (3020%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file or a registration statement under the Act covering the lesser percentage if requesting registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00010,000,000 (the “Initiating Holders”), then the Company shall, within twenty ten (2010) days of the receipt thereofof the Initial Request, give written notice of such request the Initial Request to all Holders, and subject to the limitations of this Section 1.2, use all its commercially reasonable best efforts to effectfile, as soon as practicablewithin forty-five days, the a registration statement under the Act of all covering the Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a), and to use its commercially reasonable best efforts to cause such registration statement to become effective within one hundred twenty days of the Initial Request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority two-thirds (2/3) in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority two-thirds (2/3) in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any ) or otherwise agreed to by the Holders participating in such underwriting, provided however that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, entirely excluded from the venture capital funds (or other investment funds), partners, retired partners underwriting and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. If Holders of more than a majority of the Registrable Securities mutually requested for inclusion in the offering by the Initiating Holders are excluded from the offering pursuant to the foregoing mechanics, then such request for registration shall not count as one of the two (2) permitted demand registrations under this Section 1.2.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i1) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii2) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii3) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv4) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v5) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) twelve-month period and provided further period, provided, however, that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Request for Registration. (ai) Subject to the conditions of this Section 1.25.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after following the effective date of the Initial Offeringregistration statement for the IPO, a written request from the Holders of thirty percent (30%) [***]or more of the Registrable Securities then outstanding (for purposes of this Section 1.25.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least [***]of the Registrable Securities with an anticipated aggregate offering price of at least $10,000,000then outstanding, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.25.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a5.2(i).
(bii) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.25.2, and the Company shall include such information in the written notice referred to in Section 1.2(a5.2(i). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.25.2, if the underwriter advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares Shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(ciii) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.25.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(iia) after the Company has effected two (2) registrations pursuant to this Section 1.25.2, and such registrations have been declared or ordered effective; or;
(iiib) If the Company has effected a registration pursuant to this Section 5.2 within the preceding twelve (12) months, and such registration has been declared or ordered effective;
(c) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below5.3, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(ivd) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 F-3 pursuant to Section 1.4 hereof; or5.4;
(ve) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 5.2 a certificate signed by the Company’s Chief Executive Officer CEO or Chairman chair of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders members for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account other of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, its Shares during such ninety (90) day period days period; or
(other than a registration relating solely to f) in any particular jurisdiction in which the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be included required under the Securities Act or pursuant to applicable securities laws in a registration statement covering other jurisdictions, as the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)case may be.
Appears in 1 contract
Sources: Shareholder Agreements (Allogene Therapeutics, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2If, if the Company shall receive at any time after the earlier of date that is ninety (i90) five (5) years days after the date of this Agreement or (ii) six (6) months after Agreement, the effective date of the Initial Offering, Company receives a written request from the Holders (other than Founding Investors) of thirty fifteen percent (3015%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “"Initiating Holders”Holder(s)") that the Company file a registration statement under the Act or other Offering Document covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000five percent (5%) of the Company's total outstanding share capital on a fully diluted basis at such time, then the Company shallwill promptly, within twenty and in no event later than fifteen (2015) days of the receipt thereof, give written notice of such request to all Holders. Such Holders have the right by giving written notice to the Company within thirty (30) days after the Company has given its notice, and subject to include such of their Registrable Securities as they elect in such notice to the Company (any such Holders being referred to herein as "Participating Holders") . Subject to the limitations of this Section 1.21.2(b) and (c), the Company will use all commercially reasonable its best efforts to effectto, as soon expeditiously as practicablepossible, take such actions to register with, or otherwise seek such approvals of, the registration under SEC or any Governmental Authority as are necessary or appropriate in order to permit the Act public offer and sale of all the Registrable Securities that which the Initiating Holder or Holders request and Participating Holders had requested to be registered included in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).such registration. 5NEXT PAGE
(b) If the Initiating Holder or Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall will so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall will include such information in the written notice referred to in this Section 1.2(a)1.2. In such event event, the right of any Holder to include its Registrable Securities in such registration shall will be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holder or Holders and such Holderthe Participating Holders) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall will enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those the Company's Board of Directors and the Initiating Holders holding a majority of the Registrable Securities held requested by all such Initiating Holders (which underwriter or underwriters shall to be reasonably acceptable to included in the Company)registration. Notwithstanding any other provision of this Section 1.2, if the managing underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall will so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall will be allocated to the Holders of such Registrable Securities on a pro rata basis (as nearly as practicable) based on the number of Registrable Securities held by all such Holders (including the Initiating Holder or Holders). In , provided, that no event shall any Registrable Securities will be excluded from such underwriting unless and until all other securities are first excluded, including securities that are of the Company and other stockholders not holding Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, hereunder who were to participate in the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”underwriting have been excluded. Any Registrable Securities excluded or withdrawn from such underwriting shall will be withdrawn from the registration.
(c) Notwithstanding the foregoingIn addition, the Company shall will not be required to effect a registration pursuant to this Section 1.2:
(i) after the Company has effected three (3) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective;
(ii) if the Company has filed a registration pursuant to Section 1.2, 1.3 or 1.4 within the preceding six (6) months and such registration statement or other Offering Document has been declared or ordered effective;
(iii) during the period starting with the date sixty (60) days prior to, and ending on the date one hundred eighty (180) days following, the Company's good faith estimate of the effective date of a Company-initiated registration subject to Section 1.3, provided that the Company is actively employing in good faith its best efforts to cause such registration to become effective; provided, further that the Company will not be entitled to rely on this clause (iii) as to any proposed Company-initiated registration if such registration is not effected by the end of ninety (90) days following the commencement of such period;
(iv) if the Initiating Holder or Holders propose to dispose of Registrable Securities that may be registered within ten (10) days of such Initiating Holder's or Holders' request on Form S-3 pursuant to a request made pursuant to Section 1.4; 6NEXT PAGE
(v) if the Company furnishes to Holders requesting a registration pursuant to this Section 1.2, a certificate signed by the Company's Chief Executive Officer and Chairman of the Board stating that the Board of Directors of the Company has determined that it would be seriously detrimental to the Company and its stockholders for such registration to be effected at such time, in which event the Company will have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holder or Holders; provided, that such right to delay a request pursuant to this Section 1.2(c)(v) or Section 1.4(b)(iii) will be exercised by the Company not more than once in any twelve (12)-month period; or
(vi) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or.
(d) No registration initiated by the request of Holders hereunder will count as a registration under Section 1.2 (i) if the effect of any cut-back pursuant to Section 1.2(b) is to reduce the number of shares requested by the Holders to be included in the registration below eighty percent (80%) or (ii) after if the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared related registration statement or ordered effective; or
(iii) during the period starting other Offering Document filed with the date sixty SEC or Governmental Authority is not declared effective (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 either pursuant to Section 1.4 hereof; or1.2(e) or otherwise) or is declared effective but is subject to a Stop Order or is withdrawn by the Company before at least eighty percent (80%) of the Holders' securities so registered are sold.
(ve) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman A majority in interest of the Board of Directors stating that in Initiating Holder or Holders and the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company Participating Holders shall have the right at any time to defer demand the withdrawal of any registration statement or other Offering Document filed pursuant to this section (and the Company shall so withdraw such filing for a period of not more than ninety (90registration statement or other Offering Document) days after receipt of prior to the request of the Initiating Holderstime that such registration has become effective or is otherwise finalized and approved, provided that such right no registration statement or other Offering Document shall be exercised by withdrawn pursuant to this section if one or more Initiating Holders meets the Company not more than once minimum requirements for registration set forth in any twelve (12Section 1.2(a) month period above and provided further wishes to continue with the registration, it being understood that the Company shall not register any securities for the account of itself or in such event any other stockholder, and shall not register any securities Initiating or Participating Holders that are not Registrable Securities for the account of any Holder, during wish may withdraw their shares from such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)an individual basis.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of thirty twenty percent (3020%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company in good faith that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or;
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; oreffective and the sales of such Registrable Securities have closed;
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-Company initiated registration statement subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period 12)-month period, and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 1 contract
Sources: Investors’ Rights Agreement (Riverbed Technology, Inc.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement August 18, 2008, or (ii) six one (61) months year after the effective date of the Initial Offeringfirst registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders of thirty at least thirty-five percent (3035%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least twenty percent (20%) of the Registrable Securities with an then outstanding (but not less than the number of shares of Registrable Securities, the anticipated aggregate offering price of at least which, net of underwriting discounts and commissions, would exceed $10,000,0005,000,000), then the Company shall, within twenty (20) 10 days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially reasonable its best efforts to effect, file as soon as practicable, and in any event within 90 days of the receipt of such request, a registration statement under the Securities Act of covering all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) 20 days of the mailing of such notice by the Company’s notice pursuant to this Section 1.2(a).
(b) If the Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by the Holders of a majority of the Registrable Securities held by the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by the Holders of a majority in interest of the Registrable Securities held by the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all participating Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each participating Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed, or for a filed registration statement to be amended and have been declared effective, and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing and/or having the registration statement declared effective for a period of not more than ninety (90) 180 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve twelve-month period.
(12d) month period and provided further that In addition, the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely be obligated to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securitieseffect, or a to take any action to effect, any registration in which pursuant to this Section 1.2 after the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at At any time after the earlier of (i) five (5) years after the date of this Agreement August 22, 2005 or (ii) six (6) months the date that is 180 days after the effective closing date of the Initial Offeringfirst registered public offering of equity securities of the Company, if the Company shall receive a written request from the Holders any Investor Holder(s) of thirty at least twenty-five percent (3025%) or more of the Registrable Securities then outstanding (for purposes of and entitled to registration rights under this Section 1.2, 1 (the “Initiating Holders”) that the Company file a effect the registration statement under the 1933 Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000Securities, then the Company shall, within twenty (20) fifteen days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, effect such a registration as soon as practicable, practicable and in any event to file within 90 days of the receipt of such request a registration statement under the 1933 Act of covering all the Registrable Securities that which the Holders shall in writing request to be registered in a written request received (within 20 days of receipt of the notice given by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a)) to be included in such registration and to use its best efforts to have such registration statement become effective; provided, however, that the Company will not be required to effect the registration of Registrable Securities under this Section 1.2(a) unless the Registrable Securities are offered at a proposed aggregate offering price of not less than $15,000,000.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority two-thirds in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Section 1.4(d)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those the Company and reasonably acceptable to two-thirds in interest of the Initiating Holders; provided, however, that if the underwriter is not reasonably acceptable to two-thirds in interest of the Initiating Holders, such Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which may select an underwriter or underwriters which shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.2, if if, in the case of a registration requested pursuant to Section 1.2(a), the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company Initiating Holders shall so advise the Company and all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and all the securities other than Registrable Securities sought to be included in the underwriting shall first be excluded. Next, to the extent that further limitation is required, Registrable Securities held by the Common Stockholders sought to be included in the underwriting shall be excluded pro rata among all such Common Stockholders (according to the number of shares Registrable Securities then held by each such Common Stockholder). To the extent that further limitation is required, the number of Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on among all Investor Holders thereof desiring to participate in such underwriting (according to the number of Registrable Securities then held by all each such Holders (including the Initiating HoldersInvestor Holder). In For the sake of clarity, no event shall any Registrable Securities requested by any Initiating Holder to be included in a registration pursuant to Section 1.2(a) shall be excluded from such the underwriting unless (i) all securities other securities are than Registrable Securities have first excluded, including securities that are not been excluded and (ii) all Registrable Securities held by Holders. For purposes of this the Common Stockholders have first been excluded.
(c) The Company is obligated to effect only three registrations pursuant to Section 1.2(b1.2(a); provided, any Holder of Registrable Securities however, that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons no registration pursuant to Section 1.2(a) shall be deemed to be a single “Holder”. Any registration for any purpose of this sentence if (i) the number of Registrable Securities excluded included in the underwriting does not equal or withdrawn from exceed 75% of the number of Registrable Securities proposed by the Holders to be distributed through such underwriting and (ii) the Holders pay all expenses of such registration, including those otherwise payable by the Company in accordance with Section 1.6; and provided, further, that no registration of Registrable Securities which shall not have become and remained effective in accordance with Section 1.4 shall be deemed to be a registration for any purpose of this sentence unless such registration was withdrawn from at the registrationrequest of the Holders except under the circumstances described in the second proviso in the penultimate sentence of Section 1.6 hereof.
(cd) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to foregoing provisions of this Section 1.2:
(i) , in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless event that the Company is already subject requested to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations file any registration statement pursuant to this Section 1.2, and (i) the Company shall not be obligated to effect the filing of such registrations have been declared or ordered effective; orregistration statement:
(iiiA) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) 180 days following the effective date of a any other registration statement pertaining to an underwritten public offering of securities for the account of the Company or any Holder;
(B) if, in the case of the initial public offering of the Company-initiated registration subject ’s securities, the Company and the Initiating Holders are unable to obtain the commitment of the underwriter selected pursuant to Section 1.3 below, provided that 1.2(b) to underwrite the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveoffering on a firm commitment basis; or
(ivC) for a period of up to 90 days after the date of a request for registration pursuant to this Section 1.2 if at the Initiating Holders propose time of such request (1) the Company is engaged, or has fixed plans to dispose engage, within 90 days of the time of such request, in a firm commitment underwritten public offering of Common Stock in which the holders of Registrable Securities that may be registered on Form S-3 include Registrable Securities pursuant to Section 1.4 hereof1.3 or (2) the Company is currently engaged in a self-tender or exchange offer and the filing of a registration statement would cause a violation of the Securities Exchange Act of 1934, as amended (the “1934 Act”); or
or (vii) if the Company shall furnish to the Holders requesting a such registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the CompanyDirectors, it would not be seriously detrimental to in the best interests of the Company and its stockholders generally for such registration statement to be effected at such timefiled, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the relevant Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize the right set forth in this Section 1.2(d)(ii) more than once in any twelve twelve-month period.
(12e) month period and provided further that Each registration requested pursuant to Section 1.2(a) shall be effected by the Company shall filing of a registration statement on Form S-1 (or if such form is not register any securities for the account of itself or available, any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include which includes substantially the same information (other than information which is incorporated by reference) as would be required to be included in a registration statement covering on such form as currently constituted). Notwithstanding the sale foregoing, with the prior consent of the Registrable SecuritiesInitiating Holders, or such consent not to be unreasonably withheld, the Company may, if permitted by law, effect any registration request under this Section 1 by the filing of a registration in statement on Form S-3, provided that at the request of the Initiating Holders the Company will include on such Form S-3 information which the only Common Stock being registered is Common Stock issuable upon conversion Initiating Holders determine in their reasonable discretion to be of debt securities that are also being registered)material importance to the success of such proposed registration.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company 2.1 If Targanta U.S. shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months that is 180 days after the effective date of the Initial Offering, Offering a written request from the Holders of thirty percent (30%) or more at least a majority of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company Targanta U.S. file a registration statement under the Act covering Act, provided the registration of Registrable Securities with an anticipated as to which each registration is so requested have a proposed aggregate offering price to the public of at least $10,000,000US$30,000,000, then the Company shall, within twenty (20) days of the Targanta U.S. shall immediately upon receipt thereof, give written notice of such request to all Holders, and shall, subject to the limitations of this Section 1.22, use all its commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered (subject to any limitations in this Agreement) in a written request received by the Company Targanta U.S. within twenty (20) 30 days of the mailing of the Company’s notice by Targanta U.S. pursuant to this Section 1.2(a)subsection 2.1.
(b) 2.2 If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company Targanta U.S., in writing, as a part of their written request made pursuant to this Section 1.2, 2 and the Company Targanta U.S. shall include such information in the written notice referred to in Section 1.2(a)subsection 2.1. In The underwriter will be selected by Targanta U.S. and shall be reasonably acceptable to the Initiating Holders holding at least 60% of the Registrable Securities to be sold in such event the offering. The right of any Holder to include its Registrable Securities in such registration shall be conditioned conditional upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with Targanta U.S. as provided in subsection 5.1.5) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for form, and reasonably acceptable to such Initiating Holders. A Holder may elect to include in such underwriting by those Initiating Holders holding all or a majority part of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)it holds. Notwithstanding any other provision of this Section 1.22, if the underwriter advises the Company Targanta U.S. that marketing factors require a limitation on of the number of securities shares to be underwritten (including Registrable Securities), then the Company Targanta U.S. shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities shares of Preferred Stock and Exchangeable Shares held by all such Holders (including the Initiating Holders). In If all such shares are included in the underwritten offering, the number of additional shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of shares of Preferred Stock and Exchangeable Shares held by all such Holders (including the Initiating Holders). If all such shares are included in the underwritten offering, the number of additional shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of shares of Common Stock and Common Exchangeable Shares held by all such Holders (including the Initiating Holders); provided, however, in no event shall any Registrable Securities securities of the Holders be excluded from such underwriting unless all securities of all other securities shareholders and Targanta U.S. are first entirely excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) . Notwithstanding the foregoing, the Company if Targanta U.S. shall not be required furnish to effect Holders within 10 days of receipt of a written request for registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration2, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Company’s Chief Executive Officer or Chairman chief executive officer of the Board of Directors Targanta U.S. stating that in the good faith judgment of the Board of Directors of the Company, Targanta U.S. it would be seriously detrimental contrary to the Company best interest of Targanta U.S. and its stockholders the Canadian Corporations, taken as a whole, for such registration statement to be effected at such time, in which event the Company Targanta U.S. shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the written request of the Initiating Holders, provided that such right to delay a written request shall be exercised by the Company Targanta U.S. not more than once in any twelve (12) -month period and provided further that the Company period.
2.3 Targanta U.S. shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in effect a registration pursuant to subsection 2.1 if Targanta U.S. has effected three registrations pursuant to subsection 2.1, and such registrations have been declared or ordered effective.
2.4 In addition to the rights provided for in subsection 2.1, in the event the Investors own Registrable Securities at such time as Targanta U.S. shall have qualified for the use of Form S-3, the Investors shall have the right to request an unlimited number of, and Targanta U.S. shall file, additional registrations on Form S-3; provided, however, that Targanta U.S. shall not be obligated to file and cause to become effective any registration statement covering on Form S-3 (i) where the sale proposed aggregate offering price of the Registrable Securities to be sold is less than US$3,000,000 or (ii) if, within the calendar year of the request for registration on Form S-3 by the Investors pursuant to this subsection 2.4, Targanta U.S. has effected two such registrations, and such registrations have been declared or ordered effective. Whenever Targanta U.S. is required by this subsection 2.4 to effect the registration of the Registrable Securities, or a each of the procedures and requirements of subsections 2.1 and 2.2, including but not limited to the requirement that Targanta U.S. notify all Holders from whom notice has not been received and provide them with the opportunity to participate in the offering, shall apply to the registration under this subsection 2.4, provided, however, that the period of time in which such Holders are entitled to notify Targanta U.S. in writing of their intention to participate shall be 15 days instead of 30 days.
2.5 If, however, after the only Common Stock being registered 12th full calendar month after the effective date of the Initial Offering, Targanta U.S. is Common Stock issuable upon conversion not eligible for the use of debt securities Form S-3 for secondary sales and the Investors shall thereafter make a request in writing to effect the registration under the Act of an offering of Registrable Securities pursuant to subsection 2.4, Targanta U.S. shall, as expeditiously as practicable, use its best efforts to effect the registration, on a form of general use under the Act, of all of the shares of Registrable Securities that are also being registered)Targanta U.S. has been requested to register and such registration shall be in addition to the number of registrations provided in subsection 2.3.
Appears in 1 contract
Sources: Registration Rights Agreement (Targanta Therapeutics Corp.)
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five (5) years after the fifth anniversary of the date of this Agreement hereof, or (ii) six (6) months after the effective date of the Initial Offeringfirst registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders of thirty percent (30%) or more at least 33 1/3% of the Registrable Securities Preferred Stock (or Common Stock converted therefrom) then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an Securities, the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, of which are in excess of $10,000,0005,000,000, then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.2subsection 1.2(b), use all commercially reasonable its best efforts to effect, effect as soon as practicable, and in any event within 60 days of the receipt of such request, the registration under the Securities Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)3.3.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section subsection 1.2(a). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Initiating Holders and the Company in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) twelve-month period period; and provided further that the Company shall not register shares for its own account during such 90 day period, but such prohibition shall not apply to the registration of Company shares in connection with a merger or other strategic transaction by the Company.
(d) In addition, the Company shall not be obligated to effect, or to take any securities for action to effect, any registration pursuant to this Section 1.2:
(i) After the account Company has effected two (2) registrations pursuant to this Section 1.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior to the Company's good faith estimate of itself or any other stockholderthe date of filing of, and shall not register any securities that are not Registrable Securities for ending on a date one hundred eighty (180) days after the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planeffective date of, a registration relating subject to Section 1.3 hereof; provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required request made pursuant to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)Section 1.4 below.
Appears in 1 contract
Request for Registration. (a) Subject to the conditions of this Section 1.2, if the Company shall receive at any time after the earlier of (i) five one (51) years year after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offering, a written request from (1) the Holders of thirty percent (30%) or more a majority of the outstanding Series C Preferred Stock and the Series D Preferred Stock, voting together as a single class; or (2) the Holders of a majority of the outstanding Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”voting together on an as converted basis) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,00010 million of Registrable Securities (in each such case, the "Initiating Holders"), then the Company shallCompany, shall within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 1.2, use all commercially reasonable its best efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing receipt of the Company’s 's notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 1.2 and the Company shall include such information in the written notice referred to in Section 1.2(a). In such event the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those a majority in interest of the Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be and reasonably acceptable satisfactory to the Company)Company subject to the limitations set forth in Section 1.12 hereof. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the Company that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting such registration shall be allocated first to the Holders of such Registrable Securities Series C Preferred Stock and the Series D Preferred Stock (or common stock issued upon the conversion thereof) on a pro rata basis based on the number of Registrable Securities held by all such Holders and then to other Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by such other Holders (including the Initiating Holders); provided that the Holders of the Series C Preferred Stock and the Series D Preferred Stock may exercise this right to priority on only one occasion based upon a majority vote by the Holders of Series C Preferred Stock and Series D Preferred Stock, voting together as a single class. In no event All other cutbacks shall any be made on a pro rata basis based upon the number of Registrable Securities held by such Holders; provided, however, that the number of shares of Registrable Securities to be excluded from included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of entirely excluded from such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”underwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the The Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; , or
(ii) after the Company has effected two four (24) registrations pursuant to this Section 1.21.2 ((A) two of which shall have been effected at the request of the Holders of a majority of the Series A Preferred Stock and the Series B Preferred Stock, voting together as a single class; and (B) two (2) of which shall have been effected at the request of the Holders of a majority of the Series C Preferred Stock and the Series D Preferred Stock, voting together as a single class), and such registrations have been declared or ordered effective; provided, however, that in the event that the number of Registrable Securities included in any registration pursuant to this Section 1.2 is reduced by more than fifty percent (50%) of the number of Registrable Securities proposed to be offered pursuant to Section 1.2(b) above in any offering, then the Company shall not have the right under this Section 1.2(c)(ii) to refuse to effect a registration until a total of five (5) registrations pursuant to this Section 1.2 have been effected and such registrations have been declared or ordered effective (provided that any such fifth registration granted pursuant to this subparagraph (ii) shall be allocated to the holders of the Series C Preferred Stock and the Series D Preferred Stock voting together as a single class); or
(iii) during the period starting with the date sixty forty-five (6045) days prior to the Company’s 's good faith estimate of the date of the filing of of, and ending on a date one hundred eighty (180) days following the effective date of of, a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 1.2, a certificate signed by the Company’s 's Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)12)-month period.
Appears in 1 contract
Request for Registration. (ai) Subject to the conditions of this Section 1.2, if If the Company shall receive at any time after the earlier of (i) five (5) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Offeringtime, a written request from the Holders any Holder of thirty percent (30%) or more of the Registrable Securities then outstanding (for purposes of this Section 1.2, the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least $10,000,000, then outstanding then the Company shall, within twenty ten (2010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 1.25(b), use all commercially reasonable its best efforts to effect, effect as soon as practicable, practicable the registration under the Securities Act of all Registrable Securities that which the Holders request to be registered in a written request received by the Company within twenty fifteen (2015) days of the mailing delivery or deemed delivery of such notice by the Company’s notice pursuant to this Company in accordance with Section 1.2(a)10.
(bii) If the Initiating Holders initiating the registration request hereunder ("INITIATING HOLDERS") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.2, 5(a) and the Company shall include such information in the written notice referred to in Section 1.2(aSubsection 5(a)(i). The underwriter will be selected by a majority in interest of the Initiating Holders and shall be reasonably acceptable to the Company. In such event event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their Registrable Securities securities through such underwriting shall (together with the Company as provided in Subsection 5(d)(v)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 1.25(a), if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of securities underwritten (including Registrable Securities)Securities to be underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders). In no event shall any , in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company requested to be excluded from included by each Holder; PROVIDED, HOWEVER, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities are first excluded, including securities that are not Registrable Securities held by Holders. For purposes of this Section 1.2(b), any Holder of Registrable Securities that is a venture capital fund (or other investment fund), partnership or corporation, the venture capital funds (or other investment funds), partners, retired partners and stockholders that are Affiliates of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “Holder”. Any Registrable Securities entirely excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(ciii) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 1.2, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date one hundred eighty (180) days following the effective date of a Company-initiated registration subject to Section 1.3 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 5(a), a certificate signed by the Company’s President or Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 60 days after receipt of the request of the Initiating Holders; PROVIDED, provided HOWEVER, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) twelve-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder, and shall not register any securities that are not Registrable Securities for the account of any Holder, during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period.
Appears in 1 contract
Sources: Stockholders' Agreement (Olivetti International Sa)