Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall: (i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and (ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration. (b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3: (i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses); (ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or (iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof. (c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period. (d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company. (e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. (f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 4 contracts
Sources: Investors’ Rights Agreement (Netskope Inc), Investors’ Rights Agreement (Netskope Inc), Investors’ Rights Agreement (Netskope Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof of the Agreement or (ii) six one (61) months year after the effective date consummation of the registration statement for the Initial Public Offering, the Company shall receive a written request from Initiating Holders that the Company effect any registration with respect to all or a part shares of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use commercially reasonable efforts to effect such registration as part of a firm commitment underwritten public offering (including, without limitation, appropriate qualification under applicable state securities laws and in appropriate compliance with applicable regulations issued under the Securities Act and any event within sixty (60other governmental requirements or regulations) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in by delivering a written request received notice to such effect to the Company within twenty (20) days after the date of delivery of such written notice by the Company within ten pursuant to subsection (10i) days after such written notice from above. Notwithstanding the Company is givenforegoing, and use commercially reasonable efforts to effect such registration.
(b) The the Company shall not be obligated to effect, or to take any action to effect, effect or complete any such registration pursuant to this Section 1.33.1:
(iA) if the Registrable Securities proposed to be registered may be registered immediately on Form S-3 pursuant to Section 3.3 below;
(B) unless the requested registration would have an aggregate offering price of all Registrable Securities sought to be registered by all Holders, net of underwriting discounts and commissions, exceeding $10,000,000;
(C) during the period that begins sixty (60) days before the Company’s good faith estimate of the filing of, and that ends one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to any securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, however, that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(D) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only 3.1(a) and such registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)effective;
(iiE) during within twelve (12) months after the period starting with Company has effected such a registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective; or
(F) if the date Company furnishes to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company (i) giving notice of its bona fide intention to effect within sixty (60) days prior days, the filing of a registration statement (other than a registration of securities pursuant to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty Form S-4 or Form S-8 or otherwise with respect to an employee benefit plan) (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if including for the Initiating Holders propose to dispose Company’s first registered public offering of Registrable Securities which may its Common Stock with the Commission whereupon such requested registration shall be registered on Form S-3 accomplished pursuant to a request made under Section 1.5 3.2 hereof.
, or (cii) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its stockholders for such a registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement. In such case, the Company Company’s obligation to use its commercially reasonable efforts to register, qualify or comply under this Section 3.1(a) shall have be deferred one or more times each for a period not to exceed 180 days from the right receipt of the request to defer file such filing for the period during which registration by such disclosure would be materially detrimentalInitiating Holder or Holders, provided that the Company may not defer such filing for a period of exercise this deferral right more than one hundred twenty once per twelve-month period. Subject to the foregoing clauses (120A) days through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 3 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Force10 Networks Inc), Investors’ Rights Agreement (Force10 Networks Inc)
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable and in any event within sixty ninety (6090) days of after receipt of such written request, use all reasonable efforts to effect such registration, qualification or compliance (including, without limitation, the execution of an undertaking to file a registration statement covering post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such receipt of the written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.31.5:
(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, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) Prior to six (6) months after the effective date of the Company’s Initial Public Offering;
(C) After the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have subparagraph 1.5(a), such registration has been declared or ordered effective and registrations which the securities offered pursuant to each such registration have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent sold; provided that a majority of Registrable Securities requested for inclusion were in fact included in such election, have been required to bear such expenses)registration;
(iiD) during During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration initiated by the Company-initiated registration, ; provided that the Company is actively employing employed in good faith in all commercially reasonable efforts to cause such registration statement to become effectiveeffective and provided further that the Initiating Holders shall be entitled to include Registrable Securities on such registration pursuant to Section 1.6 hereof; or
(iiiE) if If such registration, qualification or compliance involves securities with an aggregate value less than Ten Million Dollars ($10,000,000). Subject to the foregoing clauses (A) through (E), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders propose Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such, registration would be detrimental to dispose the Company and the Board concludes, as a result, that it is essential to defer the filing of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
such registration statement at such time, and (cii) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Board, it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty up to ninety (12090) days after receipt of the request of the Initiating Holders. The , and provided further, that the Company may shall not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 3 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Obalon Therapeutics Inc), Investors’ Rights Agreement (Obalon Therapeutics Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction) (the “Initial Public Offering”), a written request from the Initiating Holders or Series D Initiating Holders that the Company effect any file a registration with respect to all or a part statement under the Act covering the registration of not less than fifty percent (50%) of the Registrable SecuritiesSecurities then outstanding and held by the holders of (i) Preferred Stock or (ii) Series D Preferred Stock, as applicable, (or any lesser number of shares if the anticipated aggregate offering price, net of underwriting discounts and commissions would exceed $5,000,000) (such request by the Initiating Holders, a “Preferred Demand” and such request by the Series D Initiating Holders, a “Series D Demand” and such requested securities in either case, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance“Demand Securities”)) exceed $30,000,000, then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 2.2(b), use its best efforts to effect as soon as practicable, and in any event within sixty (60) days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities of which the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received given within twenty (20) days of the mailing of such notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 5.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if If the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 Holders, pursuant to a request made under Section 1.5 hereof.
(c) If Preferred Demand, or the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Series D Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed , pursuant to the request of the Initiating Holders maya Series D Demand, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 2.2(a). In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting 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, pursuant to a Preferred Demand, or a majority in interest of the Series D Initiating Holders, pursuant to a Series D Demand, and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority in interest of the Initiating Holders, pursuant to a Preferred Demand, or a majority in interest of the Series D Initiating Holders, pursuant to a Series D Demand. Notwithstanding any other provision of this Section 1.32.2, if the representative of the underwriters underwriter advises the Initiating Holders Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to shares of Registrable Securities that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwritingamong all Holders thereof, such person shall be excluded therefrom by written notice from the Company, the underwriter or including the Initiating Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder (a “Cutback Registration”). The Company shall not include in any registration pursuant to a Preferred Demand or Series D Demand that is an underwritten offering any securities that are held by an employee of the Company or any of its subsidiaries or any person controlled by any such employee without the prior written consent of the managing underwriters and shall not include in any registration pursuant to a Preferred Demand or Series D Demand any securities that are not Registrable Securities without the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from prior written consent of the registration and if holders of a majority of the number of securities Registrable Securities held by the Initiating Holders, pursuant to be a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand, included in such registration.
(c) The Company is obligated to effect only one (1) such registration was previously reduced as pursuant to a result Preferred Demand and two (2) such registrations pursuant to a Series D Demand; provided that a Cutback Registration shall not be deemed a registration pursuant to a Preferred Demand or Series D Demand if less than 75% of marketing factors the securities requesting registration in such demand are not registered pursuant to such registration.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.3(f)2.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be materially and adversely detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, pursuant to a Preferred Demand, or the Series D Initiating Holders, pursuant to a Series D Demand; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period.
(e) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.2 during the period starting with the date of filing of, and ending on a date ninety (90) days after the effective date of, a Company-initiated registration; provided the Company is actively employing in an aggregate amount equal good faith all reasonable efforts to the number of securities so withdrawn, with cause such securities registration statement to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofbecome effective.
Appears in 2 contracts
Sources: Rights Agreement, Rights Agreement (A10 Networks, Inc.)
Requested Registration. If at any time after six months after the ---------------------- initial public offering of the Company's Common Stock pursuant to a registration statement filed with the SEC under the Act (a) If "IPO"), the Company shall receive from the Initiating Holders, at any time or times after the earlier of (iHolder(s) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect a registration and any registration related qualification or compliance (collectively, a "Registration") with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, 1. promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) 2. as soon as practicable, and in any event within sixty use its diligent best efforts to effect such Registration (60) days including, without limitation, the execution of receipt an undertaking to file post-effective amendments, appropriate qualification under the applicable blue sky or other state securities laws of such jurisdictions in the United States as Holders shall reasonably request, file a registration statement covering and appropriate compliance with applicable regulations issued under the Act and any other governmental requirements or regulations) and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders' Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request received by the Company notice given within ten (10) 30 days after receipt of such written notice from the Company is givenCompany, and use commercially reasonable efforts to effect such registration.
(b) The except that the Company shall not be obligated to effect, take any action to effect any such Registration pursuant to this Section 2.1 after the Company has effected three Registrations pursuant to request under this subsection 2.1(a) and such registrations have been declared or ordered effective. In no event shall the Company be required to qualify generally to do business as a foreign corporation in any jurisdiction where it is not at the time so qualified or to execute or file a general consent to service of process in any such jurisdiction where it has not theretofore done so or to take any action that would subject it to effect, general service of process or taxation in any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have jurisdiction where it is not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior then subject. Subject to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statementforegoing provisions, the Company shall have file a registration statement covering the right Registrable Securities so requested to defer such filing for the period during which such disclosure would be materially detrimentalregistered as soon as practicable, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) but in any event within 90 days after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 2 contracts
Sources: Investor Rights Agreement (Network Access Solutions Corp), Investor Rights Agreement (Network Access Solutions Corp)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time not earlier than June 30, 2011 or times after the earlier of within one (i1) three (3) years after the date hereof or (ii) six (6) months year after the effective date of the an IPO (other than a registration statement for relating either to the Initial Public Offeringsale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), a written request from the Initiating Holders that the Company effect any file a registration with respect to all or a part statement under the Securities Act covering the registration of Registrable Securities covering (i) no less than twenty percent (20%) of the Registrable SecuritiesSecurities held by the Initiating Holder, or (ii) if for less than twenty percent (20%) of the Registrable Securities held by the Initiating Holder then for an anticipated aggregate proceeds offering price, net of which (after deduction for underwriter’s underwriting discounts and expenses related commissions, equal to the issuance) exceed $30,000,000or exceeding US$5,000,000, then the Company shall:
(i) , within ten (10) days of after the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of sub-Section 3.1(b), use its best efforts to effect as soon as practicable, and in any event within sixty ninety (6090) days of the receipt of such request, file a the registration statement covering such under the Securities Act of all Registrable Securities of which the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received given within twenty (20) days after the mailing of such notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 10.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 3.1 and the Company shall include such information in the written notice referred to in sub-Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company3.1(a). In such event, the right of any Holder to include such Holder’s 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 securities through such underwriting shall, shall (together with the Company, Company as provided in sub-Section 3.3(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
underwriting by an majority in interest of the Initiating Holders and approved by the Company (fexcept for the Company’s IPO, which underwriter shall be as selected by the Company). Subject to Section 3.1(a) Notwithstanding but notwithstanding any other provision of this Section 1.33.1, if the representative of the underwriters underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to Registrable Securities that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwritingamong all Holders thereof, such person shall be excluded therefrom by written notice from the Company, the underwriter or including the Initiating Holders, and in proportion (as nearly as practicable) to the securities so excluded shall be withdrawn from amount of Registrable Securities of the Company owned by each Holder.
(c) The Company is obligated to effect only two (2) such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors registrations pursuant to this Section 1.3(f)3.1, provided that if the proposed registration of the Registrable Securities pursuant to this Section 3.1 is not consummated for any reason other than due to the action or inaction of the Holders, such registration shall not be deemed to constitute a registration for purposes of this sentence.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.1, a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional defer such filing for a period of not more than ninety (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 (12) month period; provided further, that the Company shall not register any other of its shares during such twelve (12) month period. A demand right under Section 3.1(a) or Section 3.1(b) shall not be deemed to have been exercised until such deferred registration shall have been effected.
(e) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 3.1 during the period starting with the date of filing of, and ending on a date one hundred and eighty (180) days after the effective date of, a Company-initiated registration; provided the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and further provided, that the Holders are entitled to join such registration subject to Section 3.2 (other than a registration of securities in a transaction under Rule 145 of the registration in Securities Act or with respect to an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.employee benefit plan)
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholders Agreement (Newsummit Biopharma Holdings LTD)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after the earlier of following five (i) three (35) years after the date hereof or of this Agreement, upon the request of Class A Members holding not less than twenty-five (ii25%) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any registration with respect Shares of Class A Membership Interest entitled to all or a part of the Registrable Securities, the aggregate proceeds of which vote (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000"Initiating Members"), the Company shall:
shall retain an independent reputable and nationally recognized investment banking firm (i"Advisor") within ten (10) days experienced in advising on the registration of receipt thereofShares of businesses similar to the Company and acceptable to the Company and the Initiating Member, give written notice to propose to the Company the optimal time to effect registration of the proposed registration Shares held by the Company and the offering price for such Company Shares. The Advisor shall make such proposal in a writing ("Proposal") delivered to all other Holders; and
(ii) as soon as practicable, and in any event the Company within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities after the Advisor is retained by the Company. The Company shall provide the Class A Members with copies of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company Advisor's Proposal within ten thirty (1030) days after such written notice from receipt of the Proposal. If the Advisor's Proposal recommends pursuing registration at that time, the Initiating Members may require the Company is givento effect registration of the Company Shares in accordance with the Advisor's Proposal. If necessary in order to effect registration of the Company Shares in accordance with the Advisor's Proposal, the Members authorize the Company to increase the number of Shares Authorized to an amount sufficient to effect the registration, and use commercially reasonable efforts authorize the Company to effect such registration.
(b) The merge the Company into a Delaware corporation and exchange their Shares in the Company for an equal number of Shares in the surviving Delaware corporation. In the event the advisor's proposal recommends against effecting registration at that time, the Company shall not be obligated to effect, or to take any action to effect, any pursue such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing ofregistration, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may Member shall not be registered on Form S-3 pursuant to a entitled request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing retain an advisor again for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing purpose set forth above for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to months after the request date of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Companyadvisor's proposal recommending against effecting a registration at that time.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Mechanical Technology Inc), Limited Liability Company Agreement (Mechanical Technology Inc)
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable and in any event within sixty ninety (6090) days of after receipt of such written request, use its commercially reasonable best efforts to effect such registration, qualification or compliance (including, without limitation, the execution of an undertaking to file a registration statement covering post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such receipt of the written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.3Subsection 2.5:
(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, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) Prior to twelve (12) months after the effective date of the Company’s initial public offering;
(C) After the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have subparagraph 2.5(a), such registration has been declared or ordered effective and registrations which the securities offered pursuant to each such registration have been withdrawn by the Holders as sold; provided that all Registrable Securities requested for inclusion were in fact included in such registration. The Company shall not be obligated to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)effect more than two registration statements in any twelve (12) month period;
(iiD) during During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration initiated by the Company-initiated registration, ; provided that the Company is actively employing employed in good faith in all commercially reasonable best efforts to cause such registration statement to become effectiveeffective and provided further that the rights of the Initiating Holders to include Registrable Securities for registration in the Company’s registration shall be governed by Subsection 2.6 hereof; or
(iiiE) if If such registration, qualification or compliance involves securities with an aggregate value less than Ten Million Dollars ($10,000,000). Subject to the foregoing clauses (A) through (E), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders propose Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such registration would be seriously detrimental to dispose the Company and the Board concludes, as a result, that it is essential to defer the filing of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
such registration statement at such time, and (cii) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Board, it would be materially seriously detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing (except as provided in clause (D) above) for the period during which such disclosure would be materially detrimental, provided that the Company may up to two (2) periods of not defer such filing for a period of more than one hundred twenty sixty (12060) days each after receipt of the request of the Initiating Holders. The , and provided further, that the Company may shall not defer its obligation in this manner more than once in any twelve (12) twelve-month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Syndax Pharmaceuticals Inc)
Requested Registration. (ai) If the Company shall receive from the Initiating Holders, Holders at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, this Agreement a written request that the Company effect any registration with respect to all or a part at least fifty percent (50%) of the Registrable Securities, the aggregate proceeds of which Company will: (after deduction for underwriter’s discounts and expenses related to the issuanceA) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promply give written notice of the proposed registration to all other HoldersInvestors; and
and (iiB) as soon as practicable, use its best efforts to effect such registration (including, without limitation, those obligations set forth in Section 3 hereof) as would permit or facilitate the sale and in any event within sixty (60) days distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other Holders any Investor or Investors joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such the written notice from the Company referenced above is given, and use commercially reasonable efforts to effect such registrationmailed or delivered.
(bii) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.32a:
(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, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the 1933 Act;
(B) after the Company has effected two initiated one (21) such registrations registration pursuant to this Section 1.3 2a (counting for these purposes only registrations which have been declared or ordered effective and pursuant to which securities have been sold and registrations which have been withdrawn by the Holders Investors as to which the Holders Investors have not elected to bear the Registration Expenses pursuant to registration expenses set forth in Section 1.6 hereof and would, absent such election, have been required to bear such expenses5 hereof);
(iiC) during the period starting with the date sixty (60) days prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iiiD) if the Initiating Holders Investors propose to dispose of Registrable Securities which may be immediately registered on Form S-3 pursuant to a request made under Section 1.5 2d hereof.
(ciii) If Subject to the foregoing clauses (i) and (ii), the Company shall furnish file a registration statement covering the Securities so requested to be registered as soon as practicable after the receipt of the request of the Initiating Holders a certificate signed by the President of the Company stating Investors; provided, however, that if (A) in the good faith judgment of the Board of Directors of the Company it Company, such registration would be materially seriously detrimental to the Company for such registration statement to be filed in and the near future and Board of Directors concludes, as a result, that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, then the Company shall have the right to defer such a filing for the period during which such disclosure would be materially seriously detrimental, provided that (except as provided in clause (ii) (C) above), the Company may not defer such the filing for a period of more than one hundred twenty ninety (12090) days after receipt of the request of the Initiating Holders. The Investors, and provided further that the Company may shall not defer its obligation in this manner more than once in any twelve (12) month period.
(d) . The registration statement filed pursuant to the request of the Initiating Holders Investors may, subject to the provisions of this clause (iii) and Section 1.14 3p hereof, include Other Shares held by Other Stockholders other securities of the Company, with respect to which registration rights have been granted, and may include securities of the Company being sold for the account of the Company.
(eiv) 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 any offering pursuant to a Registration Statement pursuant to this Section 1.3(a2(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such eventinvolves an underwritten offering, the right of any Holder Investor to include such Holder’s Registrable Securities in such registration pursuant to this Section 2(a) shall be conditioned upon such Holder’s Investor's participation in such underwriting and the inclusion of such Holder’s Registrable Investor's Securities in the underwriting to the extent provided herein. All Holders proposing An Investor may elect to distribute their securities through include in such underwriting all or a part of the Securities he or she holds.
(v) If the Company shall request inclusion in any registration pursuant to this Section 2(a) securities sold for its own account, or if any Other Stockholders shall request inclusion in any registration pursuant to this Section 2, the Initiating Investors shall, on behalf of all Investors, offer to include such securities in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Agreement. The Company shall (together with the Company, all Investors and Other Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority in interest of the Initiating Investors, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 1.32, if the representative of the underwriters advises the Initiating Holders Investors in writing that marketing factors require a limitation on the number of securities shares to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities shares to be included in the underwriting or registration shall be allocated as set forth in accordance with Section 1.14 3p hereof. If a person who has requested inclusion in such registration as provided herein above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and Investors. Any Securities or other securities held by the securities person so excluded shall also be withdrawn from such the registration. If securities shares are so withdrawn from the registration and if the number of securities shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(fclause (v), then the Company shall offer to all Holders or Other Stockholders Investors who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities shares so withdrawn, with such securities shares to be allocated among such Holders or Other Stockholders Investors requesting additional inclusion in accordance with Section 1.14 3p hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Intellect Capital Group LLC), Registration Rights Agreement (Photoloft Com)
Requested Registration. (a) If the Company shall receive from Initiating Holders, receives at any time or times after the earlier of (i) three (3) years after the date hereof hereof, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Initial Public OfferingCompany (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), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company effect any file a registration with respect to all or a part statement under the Act covering the registration of at least thirty percent (30%) of the Registrable SecuritiesSecurities then outstanding (or a lesser percent if the anticipated aggregate offering price, the aggregate proceeds net of which (after deduction for underwriter’s underwriting discounts and expenses related to the issuance) commissions, would exceed $30,000,00010,000,000), then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within sixty ninety (6090) days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities of which the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received given within twenty (20) days of the mailing of such notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 5.5.
(b) The If the 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 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder and the securities of all other shareholders and the Company are excluded entirely.
(c) In addition, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.33.2:
(i) after After the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only 3.2 and such registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)effective;
(ii) during During the period starting with the date sixty (60) days prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, registration subject to Section 3.3 hereof; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or;
(iii) if If the Initiating Holders propose to dispose of shares of Registrable Securities which that may be immediately registered on Form S-3 pursuant to a request made under pursuant to Section 1.5 hereof3.12 below; or
(iv) If the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered.
(cd) If Notwithstanding the foregoing, if the Company shall furnish to the Initiating Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Company, it would be materially seriously detrimental to the Company and its shareholders for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of not more than one hundred twenty ninety (12090) days after receipt of the request of the Initiating Holders. The ; provided, however, that the Company may not defer its obligation in utilize this manner right more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 2 contracts
Sources: Rights Agreement (Atroad Inc), Rights Agreement (Atroad Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of twelve (i) three (3) years after the date hereof or (ii) six (612) months after following the effective date of the Company’s initial public offering of its Common Stock or the second anniversary of the Purchase Agreement: (1) Initiating Holders request that the Company file a registration statement for at least 50% of the Initial Public Offering, a written Registrable Securities or (2) the holders of at least 50% of the Registrable Securities request that the Company effect any a registration with respect to all or a part of the Registrable Securities, the aggregate proceeds from which would equal or exceed $25,000,000 (net of which (after deduction for underwriter’s underwriting discounts and expenses related to the issuancecommissions) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of the receipt thereofby the Company of such notice, give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable and in any event within sixty (60) days of the receipt by the Company of such requestnotice, file a registration statement covering use its best efforts to effect such registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten (10) 20 days after receipt of such written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.33.1:
(i1) after In any particular jurisdiction in which the Company has effected two 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 by the Securities Act;
(2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during During the period starting with the date sixty ninety (6090) days prior to the Company’s good faith estimate of the estimated date of filing of, and ending on a the date one hundred eighty three (1803) days after months immediately following the effective date of, any registration statement pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan, in which case there shall be no such limitation on the Company-initiated registration’s obligation, or with respect to the Company’s first registered public offering of its stock in which case the period shall end on the date six (6) months following the effective date), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective;
(3) After the Company has effected two (2) such registration pursuant to this Section 3.1(a), and such registration has been declared or ordered effective and the securities offered thereunder have been sold; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c4) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its stockholders for such a registration statement to be filed in the near future and future, then the Company’s obligation to use its best efforts to register, qualify or comply under this Section 3.1 shall be deferred for a period not to exceed 90 days from the date of receipt of written request from the Holders; provided, however, that it is therefore in the best interests of the Company shall not exercise such right more than once in any twelve-month period. Subject to defer the filing of such registration statementforegoing clauses (1) through (4), the Company shall have file a registration statement covering the right Registrable Securities so requested to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty registered as soon as practicable and in any event within ninety (12090) days after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Endocyte Inc), Investors’ Rights Agreement (Endocyte Inc)
Requested Registration. (a) If the 2.1 In case Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, an Investor a written request that the Company effect any registration with respect to all or a part any of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use reasonable best efforts to effect such registration (including appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) on Form S-3 or, if Form S-3 is not available, then on Form S-1 (or any successor forms of registration statements to such Forms S-3 or S-1 or other available registration statements) and as would permit or facilitate the sale and distribution of the Registrable Securities for which registration is requested as promptly as possible and in any event within sixty (60) 60 days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holdersfor registration. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of an Investor under this Section 1.14 hereof, include Other Shares held by Other Stockholders and 2.1 may include securities of Company held by other securityholders of Company who, by virtue of agreements with Company, are entitled to include their securities in any such registration, but Company shall have no absolute right to include securities for its own account in any such registration. Within ten days after receipt of any such request, the Company being sold shall give written notice of such requested registration to all other holders of Registrable Securities and shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the account receipt of the Company's notice.
2.2 Notwithstanding the foregoing, Company shall not be obligated to file a registration statement to effect any such registration pursuant to this Section 2:
(ea) If unless the Initiating Holders intend to distribute the amount of Registrable Securities covered by their request by means for which registration is requested is at least 500,000 shares (as adjusted for any stock split, stock dividend, recapitalization or similar event); provided, however, that if the total number of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held a requesting Investor (but not a transferee of Investors other than a member of Holdings) is less than 500,000 shares (as adjusted to give effect to any stock split, reverse stock split, stock dividend, recapitalization or any similar event or transaction), then such Investor (but not a transferee of Investors other than a member of Holdings) may request registration under this Section 2 as to all but not less than all of such Registrable Securities as may then be held by all Initiating Holders such requesting Investor;
(b) after Company has initiated two registrations on S-1 pursuant to this Section 2 (counting for these purposes only registrations that have been declared effective); provided that the Company shall, subject to Section 2.2(a), be obligated to file (i) unlimited registration statements on S-3 and shall be reasonably acceptable (ii) unlimited additional registration statements on S-1 to the Companyextent all Registration Expenses incurred in connection with such S-1 registration are borne by the requesting Investors.
2.3 Any offering of securities made under this Section 2 may, at the option of the requesting Investors, be pursuant to a "firm commitment" underwriting. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, Company (together with the Company, requesting Investors) shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting.
(f) underwriting by the requesting Investors with the consent of Company, which consent shall not be unreasonably withheld. Notwithstanding any other provision of this Section 1.32, if the representative of the underwriters advises the Initiating Holders in writing managing underwriter determines that marketing factors require a limitation on of the number of securities shares to be underwritten, the Initiating Holders shall so advise all holders managing underwriter may limit the number of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration to the extent required by such limitation as follows:
(a) if the registration was previously reduced as a result initiated for the account of marketing factors pursuant to this Section 1.3(fany Investors (the "Initiating Holders"), the number of shares reduced shall be: (A) first, any shares sought to be registered by Company shall offer for its own account; (B) second, if further reductions are required, any shares sought to all be registered by holders of securities other than the Initiating Holders or Other Stockholders who have retained rights requested to include their securities in the registration the right to include additional securities in the registration in an aggregate amount equal to such registration, pro rata based on the number of securities so withdrawn, with such securities shares requested to be allocated among included in such registration; and (C) third, if still further reductions are required, any securities sought to be registered by the Initiating Holders pro rata based on the number of Shares requested to be included in such registration; and
(b) if the managing underwriter has not limited the number of Registrable Securities to be included in such registration, Company may include securities for its own account or Other Stockholders requesting additional inclusion for the account of others in accordance with Section 1.14 hereofsuch registration if the number of Registrable Securities to be included in such registration will not thereby be limited.
Appears in 2 contracts
Sources: Restructuring Agreement (Teletouch Communications Inc), Investor Rights Agreement (Teletouch Communications Inc)
Requested Registration. (a) If At any time after the Expiration Date, in case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request from a Holder or Holders that the Company effect any a registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablepracticable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and in any event within sixty (60appropriate compliance with federal government requirements) days the sale and distribution of receipt of such request, file a registration statement covering such the Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request received by the Company given within ten (10) days after receipt of such written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or file a registration statement pursuant to take any action this Section:
(A) within two hundred seventy (270) days after the effectiveness of a registration statement relating to effect, any such a registration effected pursuant to this Section 1.3:1.3(a) or Section 1.4(a);
(iB) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(C) in any registration having an aggregate sales price (before deduction of underwriting discounts and commissions) of less than $5,000,000; or
(D) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only 1.3(a) and such registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
provided, however, that any registration request which is subsequently withdrawn shall not be deemed to be a registration under this subsection (iiiD) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company requesting such registration shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to have reimbursed the Company for all Registration Expenses related to such registration statement to be filed in withdrawn registration. Notwithstanding the near future and that it is therefore in foregoing, if at the best interests of the Company to defer the filing time of such registration statementwithdrawal, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.have
Appears in 2 contracts
Sources: Registration Rights Agreement (Veritas Software Corp), Registration Rights Agreement (Veritas Software Corp)
Requested Registration. (a) If Subject to the terms of this Agreement, in the event that the Company shall receive from the Initiating Holders, Holders at any time or times after the earlier of (i) three two (32) years after following the date hereof or initial closing of the purchase and sale of the Series C Preferred pursuant to the Series C Purchase Agreement (the “Initial Closing”) and (ii) six (6) months after the effective date of the registration statement for the Initial Public Offeringfollowing a Qualified IPO, a written request that the Company effect any a registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
shall (i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
Holders and (ii) as soon as practicable, and in any event within sixty (60) days use its reasonable efforts to effect registration of receipt of such request, file a registration statement covering such the Registrable Securities of the Initiating Holders as are specified in such request, together with the any Registrable Securities of other Holders any Holder joining in such request as are specified in a written request received by the Company given within ten twenty (1020) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationCompany.
(b) The Company shall not be is obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected effect only two (2) such registrations pursuant to this Section 1.3 2.4.
(counting for these purposes only registrations c) Notwithstanding the foregoing, the Company shall not be obligated to take action to effect such registration pursuant to this Section 2.4:
(i) In any particular jurisdiction in which have been declared the Company would be required to execute a general consent to service of process in effecting such registration, qualification or ordered effective compliance unless the Company is already subject to service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)Securities Act;
(ii) during If the period starting with Registrable Securities proposed to be sold by the date sixty Initiating Holders have aggregate proceeds (60) days prior after deduction for underwriters’ discounts and expenses related to the Company’s good faith estimate issuance) of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveless than $4,000,000; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company (the “Board of Directors”) has determined in its good faith judgment, that it would be materially seriously detrimental to the Company and its shareholders for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of at such registration statementtime, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of not more than one hundred twenty ninety (12090) days after receipt of the request of the Initiating Holders. The Company may Holders (provided that such right shall not defer its obligation in this manner be used more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and ); provided further that the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter not register any securities for account of itself or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in shareholder during such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofninety (90) day period.
Appears in 2 contracts
Sources: Investors Rights Agreement, Investors Rights Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Requested Registration. Subject to the conditions of this Section 4.1, (ai) If if the Company shall receive prior to the first underwritten public offering of the Company's securities (the "Initial Offering"), a written request from the Holders of not less than fifty percent (50%) of the Registrable Securities issued or issuable pursuant to the conversion of the Series C Preferred, Series D Preferred and Series E Preferred (the "Initiating Holders"), that the Company effect a registration covering the registration of a number of Registrable Securities equal to at any time or times after least twenty percent (20%) of the earlier of (i) three (3) years after Registrable Securities held by such Holders on the date hereof or having an anticipated aggregate offering price to the public of at least ten million dollars ($10,000,000) or (ii) six (6) months after if the effective date of the registration statement for Company shall receive subsequent to the Initial Public Offering, a written request that the Company effect any registration with respect of Holders of a number of Registrable Securities equal to all or a part not less than twenty percent (20%) of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related Securities issued or issuable pursuant to the issuance) exceed $30,000,000conversion of the Series C Preferred, Series D Preferred and Series E Preferred, the Company shallwill:
(ia) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(iib) use its diligent best efforts to effect, as soon as practicable, the registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and in any event within sixty (60appropriate compliance with applicable regulations issued under the Securities Act) days of receipt of such request, file a registration statement covering such the Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by given within fifteen (15) days after receipt of such written notice from the Company; provided that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 4.1:
(i) If at the time of the request to register Registrable Securities the Company gives notice within ten (10) days after of such written notice from request that it is then engaged or has fixed plans to engage within thirty (30) days of the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after time of the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders request in an initial firmly underwritten registered public offering as to which the Holders have not elected to bear the Registration Expenses may include Registrable Securities pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereofSections 4.1 or 4.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 2 contracts
Sources: Investor's Rights Agreement (Coinstar Inc), Investor's Rights Agreement (Coinstar Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof March 27, 2001, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Initial Public OfferingCompany (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 Rule 145 transaction pursuant to Rule 145 promulgated by the SEC under the Act), a written request from the Holders of at least a majority of the Registrable Securities then outstanding that the Company effect any file a registration with respect to all or a part statement under the Act covering the registration of at least twenty percent (20%) of the Registrable SecuritiesSecurities then outstanding (or a lesser percent if the anticipated aggregate offering price, the aggregate proceeds net of which (after deduction for underwriter’s underwriting discounts and expenses related to the issuance) commissions, would exceed $30,000,0005,000,000), then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 2.2(b), effect as soon as practicable, and in any event within sixty (60) 90 days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities which the Holders request to be registered within twenty (20) days of the Initiating Holders as are specified in mailing of such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 4.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by If the Holders as to which initiating the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
registration request hereunder (ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the "Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12") month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 2.2(a). In such event, the right of any Holder to include such Holder’s 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 securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
underwriting by the Company (f) provided such underwriter or underwriters are reasonably acceptable to a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 1.32.2, if the representative of the underwriters underwriter advises the Initiating Holders Company in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders Company shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to shares of Registrable Securities that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwritingamong all Holders thereof, such person shall be excluded therefrom by written notice from the Company, the underwriter or including the Initiating Holders, and in proportion (as nearly as practicable) to the securities so excluded shall be withdrawn from amount of Registrable Securities of the Company owned by each Holder.
(c) The Company is obligated to effect only two (2) such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors registrations pursuant to this Section 1.3(f)2.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities 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 the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofany twelve (12) month period.
Appears in 1 contract
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; andregistration, qualification or compliance
(ii) as soon as practicable, and in any event within sixty ninety (6090) days of after receipt of such written request, use commercially reasonable efforts to file a registration statement covering such registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such receipt of the written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.31.5:
(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, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) Prior to six (6) months after the effective date of the Company’s initial public offering;
(C) After the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have subparagraph 1.5(a), each such registration has been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)effective;
(iiD) during During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration initiated by the Company-initiated registration, ; provided that the Company is actively employing employed in good faith all in commercially reasonable efforts to cause such registration statement to become effectiveeffective and provided further that the rights of the Initiating Holders to include Registrable Securities for registration in the Company’s registration shall be governed by Section 1.6 hereof;
(E) If such registration, qualification or compliance involves securities with an aggregate gross offering price (before underwriters’ discounts and expenses) of less than Five Million Dollars ($5,000,000); or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cF) If the Company shall have effected a registration pursuant to this Section 1.5 within one hundred eighty days (180) preceding the Company’s receipt of the Initiating Holders’ request. Subject to the foregoing clauses (A) through (E), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such registration would be detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Board, it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore is, therefore, in the Company’s best interests of the Company to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may up to two (2) periods of not defer such filing for a period of more than one hundred twenty sixty (12060) days each after receipt of the request of the Initiating Holders. The , and provided further, that the Company may shall not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Aldeyra Therapeutics, Inc.)
Requested Registration. (a) If the Company shall receive from Initiating HoldersSubject to Section 8(g), at any time or times after ---------------------- 180 days following the earlier Company's registered initial public offering of (i) three (3) years after equity securities, upon written request by the date hereof or (ii) six (6) months after the effective date Holders of more than fifty percent of the registration statement for Registrable Securities outstanding at the Initial Public Offering, a written time of the request to the Company that the Company effect any the registration with respect to under the Securities Act of all or a part of the Registrable Securities, the aggregate proceeds of which Securities (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000a "Requested Registration"), the Company shall:
(i) within ten (10) days of receipt thereof, give written notice will use its best efforts to effect the registration under the Securities Act of the proposed registration Registrable Securities which the Company has been so requested to all other Holders; and
(ii) as soon as practicable, and in any event register by the Holders within sixty (60) days of after receipt of such request; provided, file however, that the Company shall not be obligated to effect a Requested Registration pursuant to this Section 2(a) (A) if such registration statement covering may not be effected on Commission Form S-3 (or any successor or similar short-form registration statement), or (B) during the 180 day period immediately following the commencement of a public offering of the Company's equity securities. The Company will not be required to effect more than one Requested Registration under this Section 2(a) in any 12-month period. The Company may include in a Requested Registration other securities of the Company for sale, for the Company's account or for the account of any other person if and to the extent the managing underwriter, if any, determines that the inclusion of such additional shares will not interfere with the orderly sale of the underwritten securities at a price range acceptable to the Holders. Upon receipt of a written request pursuant to this subdivision (a) the Company shall promptly give written notice of such request to all Holders, and all Holders shall be afforded the opportunity to participate in such request as follows: The Company will be obligated to include in the Requested Registration such number of Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders any Holder joining in such request as are specified in a written request by the Holder received by the Company within ten (10) 20 days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If The Holders shall have the Company shall receive from Initiating Holders, "demand" registration rights with respect to the Registrable Securities provided in this Section 5.2. Any Holder or Holders may exercise their demand registration rights at any time or times after the earlier of (i) three (3) years after date which is nine months from the date hereof or (ii) six (6) months after the effective date of the registration statement for Closing. If the Initial Public OfferingCompany shall receive from any Holder or Holders holding in the aggregate not fewer than 60% of the Registrable Securities, a written request that the Company effect any registration with respect to all or a part of the Registrable SecuritiesSecurities having an aggregate offering price, the aggregate proceeds net of which (after deduction for underwriter’s underwriting discounts and expenses related expenses, equal to the issuance) exceed or exceeding $30,000,000500,000, the Company shall:
(i) within ten (10) days of receipt thereofwill, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such registration (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and in any event within sixty (60appropriate compliance with the Securities Act) days as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other . The Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts shall be entitled to effect such registrationexercise these demand registration rights only twice.
(b) The Company shall not file a registration statement covering the Registrable Securities so requested to be obligated to effectregistered as soon as practicable after receipt of the request or requests of the Holder or Holders; provided, or to take any action to effecthowever, any such registration pursuant to this Section 1.3:
that if (i) after in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company has effected two (2) and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective registration statement at such time, and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holder or Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Company, it would be materially seriously detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially seriously detrimental, provided that the Company may not defer such the filing for a period of more than one hundred twenty (120) 180 days after receipt of the request of the Initiating Holder or Holders. The , and, provided further, that the Company may shall not defer its obligation in this manner more than once in any twelve (12) twelve-month period.
(d) . The registration statement filed pursuant to the request of the Initiating Holder or Holders maymay include other securities of the Company, subject with respect to the provisions of Section 1.14 hereofwhich registration rights have been granted, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Multicom Publishing Inc)
Requested Registration. If, (ax) If following 180 days after the distribution by Holdings to its members of all or a portion of the Common Stock owned by it, the Company shall receive receives from either the Crescent Initiating Holders, at any time the MDC Initiating Holders, the Series A Initiating Holders or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, L/C Initiating Holders a written request that the Company effect any a registration with respect to all under the Securities Act, or a part of (y) following the Registrable Securities, foreclosure by the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to Collateral Agent or Crescent under the issuance) exceed $30,000,000Pledge Agreement, the Company shallreceives from the Collateral Agent or the Crescent Initiating Holders a written request that the Company effect a registration under the Securities Act, the Company will:
(ia) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(iib) as soon as practicable, use its reasonable best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws, and in any event within sixty (60appropriate compliance with applicable regulations issued under the Securities Act) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company given within ten fifteen (1015) days after receipt of such written notice from the Company is givenCompany; provided that (x) the MDC Initiating Holders and the Crescent Initiating Holders are each entitled to two registrations pursuant to this Section 2.1, no more than one of which may be effected in any given 12-month period; (y) the Series A Initiating Holders and use commercially reasonable efforts the L/C Initiating Holders are each entitled to effect such registration.
only one registration pursuant to this Section 2.1 and (bz) The that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification, or compliance pursuant to this Section 1.32.1:
(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, qualification, or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(ii) During the period of 180 days following the effective date of the registration statement pertaining to a registered public offering of securities of the Company for cash for its own account (other than a registration relating solely to a Commission Rule 145 transaction or a registration relating solely to employee benefit plans); or
(iii) With respect to the MDC Initiating Holders, after the Company has effected two (2) such registrations on behalf of the MDC Initiating Holders requesting registration pursuant to this Section 1.3 (counting for these purposes only 2.1 and such registrations which have been declared or ordered effective and effective; with respect to the Crescent Initiating Holders, after the Company has effected two registrations which have been withdrawn by on behalf of the Crescent Initiating Holders as to which the Holders have not elected to bear the Registration Expenses requesting registrations pursuant to Section 1.6 hereof 2.1 and would, absent such election, registrations have been required declared effective (subject to bear such expensesparagraph (f);
(ii) during the period starting ); with the date sixty (60) days prior respect to the Company’s good faith estimate Series A Initiating Holders, after the Company has effected one registration on behalf of the date of filing ofSeries A Initiating Holders requesting registration pursuant to Section 2.1 and such registration has been declared effective (subject to paragraph (f)) and, and ending on a date one hundred eighty (180) days with respect to the L/C Initiating Holders, after the effective date of, a Company-initiated registration, provided that Company has effected one registration on behalf of the Company is actively employing in good faith all commercially reasonable efforts L/C Initiating Holders requesting registration pursuant to cause Section 2.1 and such registration statement has been declared effective (subject to become effectiveparagraph (f)); or
(iiiiv) if Unless the Initiating Holder or Holders requesting registration (together with any other Holders who may participate in such registration) propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
they reasonably anticipate will have an aggregate disposition price (cbefore deduction of underwriting discounts and expenses of sale) If the Company shall furnish of at least $5,000,000. Subject to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental foregoing clauses (i) through (iv) and to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statementSection 2.1(d), the Company shall have file a registration statement covering the right Registrable Securities so requested to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days registered as soon as practicable after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the MDC Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f)Crescent Initiating Holders, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.the
Appears in 1 contract
Sources: Registration Rights Agreement (American Residential Investment Trust Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after the earlier to occur of (i) three (3) years after the date hereof or ---------------------- April 16, 2003, and (ii) six the Company's initial public offering of equity securities (6) months after the effective date of the registration statement for the such an offering, an "Initial Public Offering"), a upon written request by the Initiating Holders to the Company that the Company effect a registration under the Securities Act (a "Requested Registration"), the Company shall use its diligent efforts to file a registration statement on Form S-1 or any similar long-form registration statement (each, a "Long-Form Registration Statement") (x) with respect to all or a part of the Registrable Securities, the aggregate proceeds of which first such Long-Form Registration Statement within ninety (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (1090) days after receipt of receipt thereofsuch request by such Initiating Holders and (y) with respect to each successive Long-Form Registration Statement, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of after receipt of such requestrequest by such Initiating Holders, in each case in order to effect the registration under the Securities Act of the Registrable Securities (other than Founder Stock) that the Company has been so requested to register or to file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such requeston Commission Form S-2 or Form S-3 or any successor or similar short-form registration statement (each, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company "Short-Form Registration Statement") within ten forty-five (1045) days after receipt of such written notice from request if the Company is givenqualified to file a Short-Form Registration Statement; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, any such registration file a -------- ------- Requested Registration on a Short-Form Registration Statement (a "Short-Form Registration") pursuant to this Section 1.3:
2(a) unless the anticipated gross aggregate offering price of the Registrable Securities to be sold pursuant thereto is at least two million dollars (i$2,000,000) after in the aggregate; provided, -------- further, however, that in the event the Company has effected not completed an Initial ------- ------- Public Offering, the Company shall not be obligated to file a Requested Registration on a Long-Form Registration Statement (a "Long-Form Registration") pursuant to this Section 2(a) unless at least eighty million dollars ($80,000,000) in aggregate principal amount of the Registrable Securities (as measured by the aggregate gross offering price thereof as reflected in the registration statement with respect thereto), after giving effect to such registration, would be registered under the Securities Act; provided, further, -------- ------- however, that if the Company has previously completed an Initial Public Offering ------- the Company shall not be obligated to file a Long-Form Registration unless the anticipated aggregate gross offering price with respect thereto would equal or exceed thirty million dollars ($30,000,000). The Company must file an unlimited number of Short-Form Registrations pursuant to this Section 2(a) subject to the requirement that any such Short-Form Registration meets the two million dollar ($2,000,000) aggregate offering threshold referenced above and otherwise satisfies the conditions or requirements applicable thereto. In no event shall the Company be obligated hereunder to file more than six (6) Long-Form Registrations in the aggregate or more than two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective Long-Form Registrations requested by any Investor and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant affiliates thereof. Subject to Section 1.6 hereof 2(f), the Company may include in such Requested Registration other securities of the Company for sale, for the Company's account or for the account of any other person, if and would, absent to the extent that the managing underwriter determines that the inclusion of such election, have been required to bear such expenses);
(ii) during the period starting additional shares will not interfere with the date sixty (60) days prior orderly sale of the Registrable Securities subject to such Requested Registration at a price range acceptable to the Company’s good faith estimate Majority Initiating Holders. Upon filing of a Long-Form Registration Statement or a Short-Form Registration Statement, as the date of filing ofcase may be, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable shall thereafter use its diligent efforts to cause such registration statement to become effective; or
(iii) if be declared effective under the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereofAct as promptly as possible.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Diveo Broadband Networks Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof March 1, 1989, or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt the effective date of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The first registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions a public offering of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities Capital Stock of the Company being sold for the account of the Company.
(e) 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 other than a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable registration statement relating either to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number sale of securities to be underwritten, employees of the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors Company pursuant to this Section 1.3(fa stock option, stock purchase or similar plan or a Commission Rule 145 transaction), the Company shall offer be requested by the holders of not less than 50% of the total number of shares of Restricted Securities, the Company shall promptly, and in any case within ten (10) days, give written notice of such proposed registration to all Holders holders of Restricted Securities. Thereupon the Company shall as expeditiously as possible use its best efforts to effect the registration on Form S-1 (or Other Stockholders who have retained rights on a form of general use then in effect under the Act) of the shares of Restricted Securities which the Company has been requested to include securities register (i) in such request and (ii) in any response to such notice given to the Company within twenty (20) days after the Company's giving of such notice, in order to permit the sale or other disposition of such shares in accordance with the intended method of sale or other disposition given in the request and in any such response.
(a) during the first one hundred twenty (120) days after the effective date of any registration statement filed by the right Company under paragraph 5.3(b) or 5.4 hereof if the Company has complied with the provisions of paragraph 5.3(b) or 5.
(a) any other shares of Capital Stock (including issued and outstanding shares of Capital Stock as to include additional securities which the holders thereof have contracted with the Company for "piggyback" registration rights) so long as the inclusion in such registration of such shares will not, in the registration opinion of the managing underwriter(s), interfere with the successful marketing in an aggregate amount equal accordance with the intended method of sale or other disposition of all the shares of Restricted Securities sought to be registered by the holder or holders of Restricted Securities pursuant to this paragraph 5.3(a). If it is determined as provided above that there will be such interference, the other shares of Capital Stock sought to be included shall be excluded to the extent deemed appropriate by the managing underwriter(s) and, if the number of securities so withdrawn, with such securities Restricted Securities to be allocated among included would itself be too large, the number of shares of the holder thereof to be included shall be determined pro rata based on the total number of Restricted Securities owned by each holder requesting to participate.
(b) In addition to the registration rights granted in paragraph 5.3(a), if a registration may be effected by the Company on Form S-3 or a similar short-form registration statement, and the Company shall be requested by the holders of not less than thirty percent (30%) of the total number of shares of Restricted Securities, the Company shall, as expeditiously as possible, use its best efforts to effect the registration on Form S-3 or a similar short-form registration statement of the shares of Restricted Securities which the Company has been requested to register in such Holders request. The Company shall be obligated to have only one (1) registration statement declared effective pursuant to this paragraph 5.3(b), and the rights granted by this paragraph 5.3(b) may not be exercised during the first one hundred twenty (120) days after the effective date of any registration statement filed by the Company under paragraph 5.3(a) or Other Stockholders requesting additional inclusion in accordance 5.4 hereof if the Company has complied with Section 1.14 hereofthe provisions of paragraph 5.3(a) or 5.4.
Appears in 1 contract
Sources: Capital Stock Investment Agreement (Aehr Test Systems)
Requested Registration. (a) If after 180 days following the date on which the Initial Public Offering has been consummated, the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for TJC Stockholders, the Initial Public OfferingPenske Stockholders or the Charlesbank Stockholders (the "Initiating Stockholder(s)"), a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000registration, the Company shall, subject to the limitations and conditions hereinafter set forth:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other HoldersStockholders; and
(ii) as soon as practicablepracticable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments and any other governmental requirements) all Restricted Stock which the Initiating Stockholder(s) request to be registered, and in any event within sixty (60) days all Restricted Stock of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified other Stockholders who elect to participate in such requestregistration, together with pursuant to Section 2.1(b); provided, that the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such file a registration statement pursuant to this Section 1.3:2.1(a):
(iA) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(B) within 360 days following the effective date of any registered offering of the Company's securities to the general public in which the Stockholder of Restricted Stock shall have been able effectively to register all Restricted Stock as to which registration shall have been requested (excluding, in all events, the Initial Public Offering;
(C) in any registration which does not either (1) have an aggregate offering price for the shares offered (before deduction of underwriting discounts and expenses of sale) of at least $25,000,000 or (2) cover the offer and sale of a number of shares of Common Stock equal to at least 10% (ten percent) of the total number of shares of Common Stock outstanding at the time that the request is made pursuant to Section 2.1(a) (it being agreed that the determination whether the registration covers at least 10% of such shares shall be made without regard to any over-allotment option of the underwriters); or
(D) after the Company has effected two effected, in the case of any demand by any of the Penske Stockholders, the Charlesbank Stockholders or the TJC Stockholders, one such registration requested by each of such collective group of such Stockholders pursuant to this Section 2.1(a) and such registration has been declared or ordered effective and not withdrawn or suspended, it being understood that each of the Penske Stockholders, the Charlesbank Stockholders and the TJC Stockholders shall be entitled to a single demand registration under this Section 2.1(a) (2) such that the Company may be required to effect a maximum of three such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses2.1(a);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of), and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Senior Manager Stockholders do not have registration rights under this Section 2.1(a). Notwithstanding the foregoing, the Company is actively employing may delay in good faith all commercially reasonable filing a registration statement and may withhold efforts to cause such a registration statement to become effective; or
(iii) , if the Initiating Holders propose to dispose Company determines in good faith that such registration will (i) materially and adversely interfere with or affect the negotiation or completion of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If any actual or pending material transaction that is being contemplated by the Company shall furnish (whether or not a final decision has been made to undertake such transaction) at the Initiating Holders a certificate signed by time the President of the Company stating right to delay or withhold efforts is exercised, or (ii) involve initial or continuing disclosure obligations that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore are not in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating HoldersCompany's stockholders. The Company may exercise such right to delay or withhold efforts not defer its obligation in this manner more than once in any twelve period of 12 consecutive months and for not more than ninety (1290) month period.
(d) The registration statement filed pursuant days. Notwithstanding anything to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and contrary that may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information be contained in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3Agreement, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities Company exercises its right to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities delay or to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f)withhold efforts, the Company shall offer use its reasonable best efforts to all Holders have the registration statement filed or Other Stockholders who have retained rights declared effective, as the case may be, at the earliest practicable date after the Company's reasons for delaying or withholding efforts are no longer applicable (but subject to include securities the time limitation in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofimmediately preceding sentence).
Appears in 1 contract
Sources: Registration Rights Agreement (Universal Technical Institute Inc)
Requested Registration. (ai) If Subject to the Company shall receive from Initiating Holderslimitations set forth in this Agreement, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months which is 90 days after the effective date of Closing of the Acquisition Agreement ("Initial Date") and prior to three years from the date hereof, the Stockholders may together request the Company to register under the Act, all or any portion (but not less than 25,000 shares) of the Registerable Securities for sale on terms and conditions comparable to those normally applicable to offerings of equity securities in similar circumstances as determined by the Company on Form S-3 or such other form as the Company deems appropriate; provided, however, that the request for registration must be for a continuous or "shelf" registration statement for made pursuant to Rule 415 promulgated under the Initial Public OfferingAct or any similar or successor rule ("Shelf Registration"). The Company may, a written request that the Company effect in its sole discretion, and on only one occasion, terminate any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within Shelf Registration by giving ten (10) days of receipt thereof, give written notice of to the proposed Stockholders. In such an event, the Company shall grant the Stockholders another registration statement pursuant to all other Holders; and
(ii) as soon as practicable, and in any event within this Section 1(b). No such request may be made until at least sixty (60) days of receipt have passed from the date of such requesttermination. In any event, file a any registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) need not remain in effect after any date that is beyond three years from the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);date hereof.
(ii) during Following receipt of any notice under Section 1(b), the period starting Company shall, subject to the limitations set forth in this Agreement, use its best efforts to register under the Act, for public sale in accordance with the date sixty (60) days prior to the Company’s good faith estimate method of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that disposition specified in the good faith judgment of Stockholders' notice, the Registerable Securities specified in the Stockholders' notice; provided, however, that if the Board of Directors of the Company it determines that such registration would be materially detrimental to the Company for such registration statement to be filed in and the near future and Board of Directors of the Company concludes, as a result, that it is therefore in the best interests of the Company to defer the filing of such registration statement at such time, and the Company furnishes to the Stockholder a certificate signed by an executive officer of the Company that the Board of Directors of the Company has made such determination and that it is, therefore, necessary to defer the filing of such registration statement, then the Company shall have the right only once to defer such filing for the period during which such disclosure registration would be materially detrimental, provided (except as otherwise provided in this Section 1(b)(ii)) that the Company may not defer such the filing for a period of more than one hundred twenty (120) 180 days after receipt of the request of the Initiating HoldersStockholders ("Deferred Filing"). The Company shall be obligated to register the Registerable Securities pursuant to this Section 1(b) on one occasion only (except as otherwise provided in Section 1(b)(i); provided that such a registration shall be counted only if (A) the corresponding registration statement has become effective under the Act, and (B) the public offering has been consummated on the terms and conditions specified therein or if not consummated, such failure was not attributable to an action taken by the Company. Notwithstanding anything herein to the contrary, the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 1(b)(i) during the period starting with the date 90 days prior to the Company's estimate of the date of filing of, and ending on a date 270 days after the filing of, a Company initiated registration ("Delayed Registration Statement"). The Company may not defer its obligation causse a Delayed Registration Statement during the first year after the Initial Date (which year shall be increased by any delay caused by a Deferred Filing) unless the Company agrees to include in this manner more than once in any twelve (12) month periodsuch Company initiated registration all the Registered Securities of the Stockholders.
(diii) The Company shall be entitled to include in any registration statement filed pursuant to the request this Section 1(b) (A) securities of the Initiating Holders mayCompany held by any other shareholder of the Company, and (B) in an underwritten public offering, Common Stock of the Company to be sold by the Company for its own account.
(iv) If and whenever the Company is required by the provisions of Section 1(b) hereof to use its best efforts to effect the registration of any of the Registerable Securities under the Act, the Company will, subject to the limitations set forth in this Agreement, as expeditiously as reasonably practicable:
(A) prepare and file with the Commission a registration statement with respect to such securities and use its best efforts to cause such registration statement to become and remain effective for a period of the distribution contemplated thereby (determined pursuant to Section 1(b)(iv)(G) below);
(B) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for the period specified in Section 1(b)(iv)(G) below and as may be necessary to comply with the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities the Act with respect to the disposition of the Company being sold for the account of the Company.
(e) If the Initiating Holders intend to distribute the Registrable all Registerable Securities covered by their such registration statement in accordance with the Stockholders' intended method of disposition set forth in such registration statement for such period;
(C) furnish to the Stockholders and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus and each document incorporated by reference therein to the extent then required by the rules and regulations of the Commission) as such persons may reasonably request in order to facilitate the public sale or other disposition of the Registerable Securities covered by means such registration statement;
(D) use its best efforts to register or qualify the Registerable Securities covered by such registration statement under the securities or blue sky laws of such jurisdictions as the Stockholder or, in the case of an underwritingunderwritten public offering, they the managing underwriter(s), shall so advise reasonably request and to take all necessary action to keep such registration or qualification effective as required by this Section 1(b) as to a registration statement filed with the Company as a part of their request made pursuant to Section 1.3(a) hereof and Commission; provided that the Company shall include not be required to qualify to transact business as a foreign corporation in any jurisdiction in which it would not otherwise be required to be so qualified or to take any action which would subject it to general service of process in any such information jurisdictions which it is not then so subject;
(E) promptly notify in writing each Stockholder and each underwriter of the happening of any event as a result of which the prospectus contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority light of the Registrable circumstances then existing (in which case, the Company shall promptly provide the Stockholders with revised or supplemental prospectuses and if so requested by the Company in writing, the Stockholders shall promptly take action to cease making any offers of the Registerable Securities held by all Initiating Holders until receipt and shall be distribution of such revised or supplemental prospectuses);
(F) make available for inspection during normal business hours to a representative of the Stockholders, any underwriter reasonably acceptable to the Company. In Company participating in any distribution pursuant to such eventregistration statement, the right and any attorney, accountant or other agent retained by any representative of any Holder Stockholder or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries which may reasonably be required in order to include effectuate the distribution, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Holder’s Registrable Securities representative of any such Stockholder, underwriter, attorney, accountant or agent in connection with such registration statement; provided, however, that the Stockholders and each such representative of any such Stockholder, underwriter, attorney, accountant or agent must execute and deliver to the Company a confidentiality agreement in form and substance acceptable to the Company agreeing to keep any such information and records concerning the Company confidential;
(G) use its best efforts to keep effective and maintain any registration, qualification, approval or listing obtained to cover the Registerable Securities as may be necessary for the Stockholders to dispose of the Registerable Securities during the period of distribution and shall be conditioned upon such Holder’s participation from time to time amend or supplement any prospectus used in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting connection therewith to the extent provided hereinnecessary in order to comply with applicable law. All Holders proposing to distribute their securities through such underwriting shall, together with Notwithstanding the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f)foregoing, the Company shall offer not be required to all Holders file or Other Stockholders who have retained rights to include securities in keep effective and maintain any such registration, qualification, approval or listing for such period that would require it to cause an audit of the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities Company to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance performed other than as is required by the rules and regulations of the Commission with Section 1.14 hereofrespect to reports required to be filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Initial Public OfferingCompany (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), a written request from the Initiating Holders that the Company effect any file a registration with respect to all or a part statement under the Act covering the registration of not less than thirty percent (30%) of the Registrable SecuritiesSecurities then outstanding (or any lesser number of shares if the anticipated aggregate offering price, the aggregate proceeds net of which (after deduction for underwriter’s underwriting discounts and expenses related to the issuance) commissions would exceed $30,000,0005,000,000), then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 2.2(b), use its best efforts to effect as soon as practicable, and in any event within sixty ninety (6090) days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities of which the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received given within twenty (20) days of the mailing of such notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 4.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 2.2(a). In such event, the right of any Holder to include such Holder’s 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 securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 1.32.2, if the representative of the underwriters underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to shares of Registrable Securities that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwritingamong all Holders thereof, such person shall be excluded therefrom by written notice from the Company, the underwriter or including the Initiating Holders, and in proportion (as nearly as practicable) to the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from amount of Registrable Securities of the registration and if Company owned by each Holder; provided, however, that the number of securities shares of Registrable Securities to be included in such registration was previously underwriting shall not be reduced as a result of marketing factors unless all other securities proposed to be sold by persons other than the Holders are first entirely excluded from the underwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company is obligated to effect only two (2) such registrations pursuant to this Section 1.3(f)2.2, provided that such registrations have been declared or ordered effective by the SEC.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration 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, however, that 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 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 additional securities 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 an aggregate amount equal which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
(e) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.2 during the number period starting with the date of securities so withdrawnfiling of, with and ending on a date ninety (90) days after the effective date of, a Company-initiated registration subject to Section 2.3 below; provided the Company is actively employing in good faith all reasonable efforts to cause such securities registration statement to become effective.
(f) Notwithstanding the foregoing, the Company shall not be allocated among obligated to effect, or to take any action to effect, or to take any action to effect, any such Holders or Other Stockholders requesting additional inclusion registration pursuant to this Section 2.2 in accordance with Section 1.14 hereofany 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 1 contract
Sources: Rights Agreement (Techwell Inc)
Requested Registration. (a) If The Initiating Holders shall be entitled to submit pursuant to this Section 2 a written request for registration. Upon receipt by the Company shall receive from the Initiating Holders, at any time or times after the earlier of (i) three (3) years after six-month anniversary and prior to the date hereof or (ii) six (6) months after the effective date second annual anniversary of the registration statement for Closing Date of the Initial Public OfferingAgreement, of a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) give written notice of the proposed registration, qualification or compliance to all other Holders within ten (10) days of after receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) use its best reasonable efforts to effect an S-3 registration (as soon well as practicablequalification under the applicable blue sky or other state securities laws, and in appropriate compliance with exemptive regulations issued under the Act and any event within sixty (60other governmental requirements or regulations) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such the Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten sixty (1060) days after such written notice from the Company is given; provided, and use commercially reasonable efforts to effect such registration.
(b) The that the Company shall not be obligated to effect, or to take any action to effecteffect any such registration, qualification or compliance pursuant to this Section 2:
(A) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process (unless the Company is already subject to service of process under said state's securities laws), to register as a dealer, or to cause any officer or employee of the Company to register as a salesman in effecting such registration, qualification or compliance;
(B) After the Company has effected one (1) such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cC) If the Company shall furnish to the Initiating such Holders a certificate signed by the President Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its stockholders for such a registration statement to be filed in the near future and that it is therefore in future, then the Company's obligation to use its best interests efforts to register, qualify or comply under this Section 2 shall be deferred for a period not to exceed 180 days from the date of receipt of written request from the Company to defer the filing of such registration statementInitiating Holders; provided, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimentalhowever, provided that the Company may not defer such filing for a period of utilize this right more than once in any twelve-month period; or
(D) Within one hundred twenty (120) days after receipt of the request effective date of any other registration effected by the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The Company, or prior to the effective date of such registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and if the Company shall include such information in the have theretofore or thereafter given written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable such registration statement to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwrittenand shall have thereafter pursued the preparation, filing and the number effectiveness of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, statement with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofdiligence.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Photocomm Inc)
Requested Registration. (aRequest for Registration. Subject to the provisions of Section 2(b) If the Company shall receive from Initiating Holders------------------------ below, if at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for Qualified IPO or (ii) August 12, 2002, the Initial Public Offering, Company shall receive from Initiating Holders a written request that the Company effect any registration with respect to all or a part any of their Registrable Securities in which the Registrable Securities, the anticipated aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed is at least $30,000,0005,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, will: promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) and as soon as practicable, use commercially reasonable efforts to effect such registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and in appropriate compliance with applicable regulations issued under the Securities Act and any event within sixty (60other governmental requirements or regulations) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after receipt of such written notice from the Company; provided, however, that the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company -------- ------- shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.3:
(i) after 2: In any particular jurisdiction in which the Company has effected two (2) would be required to execute a general consent to service of process in effecting such registrations pursuant registration, qualification or compliance unless the Company is already subject to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
Securities Act; Within ninety (ii) during the period starting with the date sixty (6090) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, of any registration statement pertaining to securities of the Company (other than a Company-initiated registrationregistration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
After the Company has effected three (iii3) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 such registrations pursuant to a request made this Section 2(a), and such registrations have been declared effective under Section 1.5 hereof.
(c) the Securities Act; or If the Company shall furnish to the such Initiating Holders a certificate certificate, signed by the President of the Company Company, stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company or its shareholders for such a registration statement to be filed in the near future and that it is therefore in future, then the best interests of the Company Company's obligation to defer the filing of such registration statementuse its commercially reasonable efforts to register, the Company qualify or comply under this Section 2 shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing deferred for a period of more than not to exceed one hundred twenty (120) days after from the date of receipt of the written request of from the Initiating Holders. The ; provided, however, that the Company -------- ------- may not defer its obligation in utilize this manner right more than once in any twelve (12) month period.
(d) The registration statement filed pursuant . Subject to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities foregoing clauses 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.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in file a registration statement covering the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities Registrable Securities so withdrawn, with such securities requested to be allocated among such Holders registered as soon as practicable after receipt of the request or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofrequests of the Initiating Holders.
Appears in 1 contract
Sources: Rights Agreement (Information Management Associates Inc)
Requested Registration. (a) If On or prior to the Filing Deadline, the Company shall prepare and file with the Commission a registration statement for the Initial Public Offering.
(b) Subject to the conditions set forth in this Section 2.1, if the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Offering a written request from holders of Registrable Securities (for purposes of this Section 2.1, “Holders”) collectively holding at least fifty percent (50%) or more of the Registrable Securities then outstanding (for purposes of this Section 2.1, the “Initiating Holders”) that the Company effect any file a registration statement under the Securities Act covering the registration of Registrable Securities with respect to all or a part an anticipated aggregate offering price of the Registrable Securitiesat least $10,000,000, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, then the Company shall:
, within twenty (i) within ten (1020) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; Holders and
(ii) , subject to the limitations of this Section 2.1, use its reasonable best efforts to effect, as soon as practicable, and in any event within sixty (60) days the registration under the Securities Act of receipt of such request, file a registration statement covering such all Registrable Securities of that the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received by the Company within ten twenty (1020) days after such written of the mailing of the Company’s notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses2.1(b);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.1, and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company2.1(b). In such event, the right of any Holder to include such Holder’s 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 securities through such underwriting shall, together with the Company, shall enter into an underwriting agreement in customary form with the underwriter Underwriter or underwriters Underwriters selected for such underwriting.
(f) underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders; provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld or delayed. Notwithstanding any other provision of this Section 1.3, Section
2.1 if the representative of the underwriters Underwriter advises the Initiating Holders in writing Company that marketing factors require a limitation on the number of securities to be underwrittenunderwritten (including Registrable Securities), then the Initiating Holders Company shall so advise all holders Holders of Registrable Securities that would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to 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. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(d) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) in accordance with Section 1.14 hereof. If any particular jurisdiction in which the Company would be required to execute a person who has requested inclusion general consent to service of process in effecting such registration, unless the Company is already subject to service in such registration jurisdiction and except as provided herein does not agree may be required under the Securities Act; or
(ii) if the Company has previously effected registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the terms Company’s good faith estimate of any 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 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such underwriting, such person registration statement to become effective; or
(iv) if the Company shall be excluded therefrom furnish to Holders requesting a registration statement pursuant to this Section 2.1 a certificate signed by written notice from 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 underwriter or 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, and the securities so excluded provided, that such right shall be withdrawn from exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such registration. If securities are so withdrawn from ninety (90) day period (other than a registration relating solely to the registration and if the number sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act, a registration on any form that does not include substantially the same information as would be required to be included in such a registration was previously reduced as statement covering the sale of the Registrable Securities, or a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to which the number only Common Stock being registered is Common Stock issuable upon conversion of debt securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofthat are also being registered).
Appears in 1 contract
Sources: Investor Rights Agreement (Silvergate Capital Corp)
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable and in any event within sixty one-hundred twenty (60120) days of after receipt of such written request, use commercially reasonable efforts to effect such registration (including, without limitation, the execution of an undertaking to file a registration statement covering post-effective amendments and appropriate qualification under applicable blue sky or other state securities laws) as may be so requested and, except as otherwise specified herein, as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such receipt of the written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration pursuant to this Section 1.31.6:
(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 or qualification unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) Prior to six (6) months after the effective date of an IPO;
(1) If requested by the Series A-1 Initiating Holders, after the Company has effected two (2) such registrations pursuant to this Section 1.3 subparagraph 1.6(a) on behalf of the Series A-1 Initiating Holders, (counting for these purposes only 2) If requested by the Series A-2 Initiating Holders, after the Company has effected three (3) such registrations which pursuant to this subparagraph 1.6(a) on behalf of the Series A-2 Initiating Holders, (3) if requested by the Key Investor Deciders, after the Company has effected two (2) such registrations pursuant to this subparagraph 1.6(a) on behalf of the Key Investor Deciders and (4) if requested by any other Initiating Holders, after the Company has effected two (2) such registrations pursuant to this subparagraph 1.6(a) regardless of the requesting Initiating Holder, and, in each such case, such registrations have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)effective;
(iiD) during During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty ninety (18090) days after the effective date of, a registration initiated by the Company-initiated registration, ; provided that the Company is actively employing employed in good faith in all commercially reasonable efforts to cause such registration statement to become effectiveeffective and provided further that the rights of the Initiating Holders to include Registrable Securities for registration in the Company’s registration shall be governed by Section 1.7 hereof; or
(iiiE) If such registration involves securities with an aggregate value less than Five Million Dollars ($5,000,000), as determined by either (a) a good faith determination by the Company or (b) if the Initiating Holders propose securities are traded actively on a nationally recognized securities exchange, the average of the per share price for the five trading days prior to dispose the filing of such a registration statement. Subject to the foregoing clauses (A) through (E), the Company shall file a registration statement covering the Registrable Securities which may so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) such registration would require disclosure of information not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the board of directors of the Company (the “Board”), such disclosure is reasonably likely to adversely affect any material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on Form S-3 pursuant the Company (a “Valid Business Reason”) and the Board concludes, as a result, that it is essential to a request made under Section 1.5 hereof.
defer the filing of such registration statement at such time, and (cii) If the Company shall furnish to the Initiating such Holders a certificate signed by the President Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company there exists a Valid Business Reason to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may up to two (2) periods of not defer such filing for a period of more than one hundred twenty sixty (12060) days each after receipt of the request of the Initiating Holders. The , and provided further, that the Company may shall not defer its obligation in this manner more than once in any twelve (12) month 12)-month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Montrose Environmental Group, Inc.)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public OfferingOffering or Direct Listing, as applicable, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the with an anticipated aggregate proceeds offering price of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed at least $30,000,00010,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(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, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(ii) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations are consummated and for which have been withdrawn by the Holders as all Registrable Securities requested to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expensesbe registered are registered);
(iiiii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iiiiv) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) 90 days after receipt of the request of the Initiating Holders, and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act or 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. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company and shall be reasonably acceptable to the CompanyInitiating Holders. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
(g) Notwithstanding anything to the contrary in this Agreement, at any time after three years following the date hereof, Holders holding a majority of the outstanding Voting Registrable Securities, voting together as a single class on an as-converted to Voting Common Stock basis, may, by written request, cause the Company to effect an Initial Public Offering and may cause the Company to take any internal restructuring steps as may be reasonably necessary to effect an Initial Public Offering.
Appears in 1 contract
Sources: Investors’ Rights Agreement (MapLight Therapeutics, Inc.)
Requested Registration. (a) If Initiating Holders shall deliver to the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any a registration with respect to resales by them of all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablepossible, use its best efforts to effect the proposed registration and to effect all registrations, qualifications or compliances (including (A) appropriate qualification under applicable blue sky or other state securities laws in any event within sixty those jurisdictions selected by the managing underwriter or underwriters designated pursuant to Section 1.2(d) or, if no such managing underwriter or underwriters is designated, in those jurisdictions reasonably selected by the Holders who request to participate in such proposed registration, (60B) days appropriate compliance with applicable federal and state laws, requirements and regulations and (C) listing the Registrable Securities on the New York Stock Exchange) as well as such other steps as are reasonably necessary to permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request registration as are specified in a written request received by the Company within ten (10) 15 business days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationgiven under Section l.2(a)(i) above.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such file a registration pursuant to this Section 1.3:
(i) statement as soon as possible after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate receipt of the date request or requests of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose under this Section 1.2, but in any event within 45 days of Registrable Securities which may be registered on Form S-3 pursuant to a receipt of such request made under Section 1.5 hereof.
(c) If or requests; provided that if the Company shall furnish to the such Initiating Holders a certificate signed by the President chief executive officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company and its stockholders for such registration statement to be filed in on or before the near future date filing would be required and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which to a date not later than 60 days after receipt of such disclosure would be materially detrimental, request (provided that the Company may shall not have the right to defer such the filing for of a period of registration statement pursuant to this Section 1.2 (b) more than one hundred twenty once with respect to any such request or requests relating to a particular registration). The Company shall use its best efforts to cause any filed registration statements to become effective as soon as practicable after filing.
(120c) days after receipt of At the request of an Initiating Holder, the Company will use its best efforts to prepare the registration statement requested by the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month periodHolder to be accomplished on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) If the Initiating Holders intend to distribute the Registrable Securities covered by their this request by means of an underwritingunderwriting (which shall be their decision to make), they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a1.2(a)(i) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the underwriting shall be managed by an underwriter or underwriters selected by the Company and approved by a majority in interest of the Initiating Holders. The right of any Holder to include such Holder’s Registrable Securities in such a registration pursuant to Section 1.2 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). Holders of a majority of the Registrable Securities requested to be included in such registration shall have the extent provided hereinright to negotiate with the underwriters and to determine all terms of the underwriting, including the gross price and net price at which the included Registrable Securities are to be sold. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) as above provided. Notwithstanding any other provision of this Section 1.31.2, if the representative of the underwriters advises advise the Initiating Holders and the Company in writing that marketing factors require a limitation on of the number of securities shares to be underwrittenunderwritten and that the total amount of securities that all Holders (Initiating and non-Initiating) request pursuant to this Section 1.2 to be included in such offering exceeds the amount of securities that the underwriters reasonably believe compatible with the success of the offering, the Initiating Holders Company shall so advise all holders of Registrable Securities that would otherwise be underwritten, Holders and the number of securities shares to be included in the underwriting registration shall be allocated in accordance with Section 1.14 hereoffirst among all Initiating Holders and, if any shares remain, among all non-Initiating Holders pro rata on the basis of the number of shares of Registrable Securities owned by such Holders. If a person who has requested inclusion in such registration as provided herein does not agree to any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person shall Holder may elect not to be excluded therefrom included in the registration (or the underwritten portion thereof) by delivering a written notice from to the Company, Company at least three days prior to the underwriter scheduled initial filing of the registration statement (or such later date as is agreed to by the Initiating Holders, and Holders of a majority of the securities so excluded shall other Registrable Securities requested to be withdrawn from included in such registration). If securities shares are so withdrawn from the registration and if the number of securities shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f1.2(d), then the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities included Registrable Securities in the registration the right to include additional securities Registrable Securities in the registration in an aggregate amount equal to the number of securities shares so withdrawn, with such securities shares to be allocated first among all Initiating Holders and, if any shares remain, among all non-Initiating Holders pro rata on the basis of the number of shares of Registrable Securities owned by such Holders Holders.
(e) Notwithstanding anything to the contrary contained in this Agreement, a Holder shall not have the right to request registration or Other Stockholders requesting additional inclusion in accordance with any registration pursuant to this Section 1.14 hereof1.2 for the period during which all shares of Registrable Securities then held or entitled to be held upon exchange of OP Units by such Holder may immediately be sold under Rule 144 without regard to any volume limitation.
Appears in 1 contract
Sources: Registration Rights Agreement (Chateau Properties Inc)
Requested Registration. The Company shall register the sale or distribution by the Holders, on a delayed or continuous basis, of all of the Registrable Securities on a Form S-3 registration statement (aor any successor form to Form S-3) If (the "Shelf Registration") by February 15, 2001 (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations). Once declared effective, the Company shall receive from Initiating Holders, at any time or times after cause (x) the earlier Shelf Registration to be effective until the later of (i) three (3) years after one year from the date hereof effectiveness of such registration statement, or (ii) six (6) months after the effective date second anniversary of the registration statement for purchase of the Initial Public OfferingShares by the Investors, a written request and (y) the Shelf Registration to be useable by the Holders during such entire period, except that the Company effect any registration with respect Shelf Registration may be unuseable (including by way of notice sent pursuant to all or a part Section 10(d)) for an aggregate of 90 days less the number of days the effectiveness of the Registrable Securities, the aggregate proceeds Shelf Registration was delayed pursuant to clause (2) below of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) this Section. The Company shall not be obligated to effect, or to take any action to effect, effect the Shelf Registration; (1) in any such registration pursuant to this Section 1.3:
(i) after particular jurisdiction in which the Company has effected two 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 by the Securities Act; or (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating such Holders a certificate certificate, signed by the President or Chief Executive Officer of the Company Company, stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company for such a registration statement to be filed declared effective in the near future and that it is therefore in future, then the best interests of the Company to defer the filing of such registration statement, date by which the Company shall have the right Shelf Registration effective may be extended from February 15, 2001 by up to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period90 days.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after the earlier to occur of (i) three (3) years after the date hereof Company’s initial public offering of equity securities or (ii) six (6) months after the effective date of the registration statement for the Initial Public OfferingDecember 31, a 2006, upon written request by the Electing Investor Holders that the Company effect any the registration with respect to under the Securities Act of all or a part of the Registrable Securities, the aggregate proceeds of which Securities (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000a “Requested Registration”), the Company shall:
(i) within ten (10) days of receipt thereof, give written notice will use its best efforts to effect the registration under the Securities Act of the proposed registration Registrable Securities that the Company has been so requested to all other Holders; and
(ii) as soon as practicable, and in any event register by the Electing Investor Holders within sixty (60) days of after receipt of such request, request (or within thirty (30) days after receipt of such request if the Company is qualified to file a registration statement covering on Commission Form S-3 or any successor or similar short-form registration statement (collectively, “Commission Form S-3”)). The Electing Investor Holders may request, and the Company must effect upon receipt thereof as provided herein, up to four (4) registrations under Commission Form S-1 and an unlimited number of registrations under Commission Form S-3 pursuant to this paragraph (a); provided, however, that the Company shall not be obligated to effect more than two registrations in any 365 day period. Subject to the requirements of Section 2(f) below, the Company may include in such Registered Registration other securities of the Company for sale, for the Company’s account or for the account of any other Person, if and to the extent that the managing underwriter determines that the inclusion of such additional shares will not interfere with the orderly sale of the underwritten securities at a price range acceptable to the Electing Investor Holders. Upon receipt of a written request pursuant to this Section 2(a) the Company shall promptly give written notice of such request to all Holders, and all Holders shall be afforded the opportunity to participate in such request as follows: The Company will be obligated to include in the Requested Registration such number of Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders any Holder joining in such request as are specified in a written request by the Holder received by the Company within ten (10) 20 days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
paragraph (f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofbelow.
Appears in 1 contract
Sources: Registration Rights Agreement (Masergy Communications Inc)
Requested Registration. (a) If the Company shall receive from ---------------------- Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration (other than a registration on Form S-3 or any related form of registration statement) with respect to all or a part of Registrable Securities and the Registrable Securitiesanticipated aggregate offering price to the public, the aggregate proceeds of which (after deduction for underwriter’s excluding underwriting discounts and expenses related to the issuance) exceed commissions, is at least eight million dollars ($30,000,0008,000,000), the Company shallwill:
(i) within ten (10) thirty days of the receipt thereofby the Company of such notice, give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and in appropriate compliance with applicable regulations issued under the Securities Act and any event within sixty (60other governmental requirements or regulations) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten (10) 20 days after receipt of such written notice from the Company is givenCompany; Provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.33.1:
(iA) after 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 by the Securities Act;
(B) Prior to the earlier of November 12, 2002 or one hundred eighty (180) days following the effective date of the registration statement pertaining to a firm commitment underwritten initial public offering (an "IPO");
(C) If the Company delivers a written notice to the Initiating Holders, within thirty (30) days of its receipt of a registration request from such Initiating Holders, of its intent to file a registration statement for an IPO within ninety (90) days;
(D) If the Company's Common Stock is not listed on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended (the "Exchange Act")) and the Initiating Holders do not request that such offering be firmly underwritten by underwriters selected by the Company (subject to the consent of the Holders of a majority of the Registrable Securities proposed to be included in the underwriting);
(E) During the period starting with the date sixty (60) days prior to the Company's estimated date of filing of, and ending on the date one hundred eighty (180) days immediately following the effective date of, any registration statement pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(F) After the Company has effected two (2) such registrations pursuant to this Section 1.3 3.1(a) (counting for these purposes this purpose only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expensesExpenses);
(iiG) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if If the Initiating Holders propose to dispose of shares of Registrable Securities which may be immediately registered on Form S-3 pursuant to a request made under Section 1.5 3.3 hereof.;
(cH) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its stockholders for such a registration statement to be filed in at such time, then the near future and Company's obligation to use its best efforts to register, qualify or comply under this Section 3.1 shall be deferred for a period not to exceed ninety (90) days from the date of receipt of written request from the Initiating Holders; provided, however, that it is therefore in the best interests of the Company shall not exercise such right more than once in any twelve-month period. Subject to defer the filing of such registration statementforegoing clauses (A) through (H), the Company shall have file a registration statement covering the right Registrable Securities so requested to defer such filing for the period during which such disclosure would be materially detrimentalregistered as soon as practicable, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If If, at any time, the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Investor a written request that the Company effect any a registration with respect to all or a part under the Securities Act for the sale of at least 25% of the Registrable Securities, Securities (as defined below) held or obtainable by all of the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000Holders, the Company shall:
(i) within ten (10) days after receipt of receipt thereofsuch written request, give written notice of the proposed registration to all other HoldersHolders (if any); and
(ii) as soon as practicable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities which a Holder requests to be registered and all Registrable Securities which any other Holder requests to be registered within twenty (20) days after receipt of such written notice from the Company; provided, that the Company shall not be obligated to file any additional registration statement pursuant to this Section 1.1 after the Company has effected two such registrations at the request of Investor and such registrations have been declared or ordered effective. Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable, and but in any event within sixty (60) days of after receipt of such request, file the request or requests of a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, Holder and shall use commercially reasonable its best efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if promptly declared effective by the Initiating Holders propose to dispose of Securities Exchange Commission whether or not all Registrable Securities which may requested to be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If can be included. If, however, the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good good- faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company and its shareholders for such registration statement to be filed in the near future within such sixty-day (60-day) period and that it is therefore in the best interests of the Company to defer deferring the filing of such registration statement, the Company shall have an additional period of not more than sixty (60) days after the right expiration of the initial sixty-day (60- day) period within which to defer file such filing for the period registration statement; provided, that during which such disclosure would be materially detrimental, provided that time the Company may not defer such filing file a registration statement for a period securities to be issued and sold for its own account or the account of more than one hundred twenty (120) days after receipt an other of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month periodshareholders.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(eb) If the Initiating Holders intend a Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they such Holder shall so advise the Company as a part of their its request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereofsubsection 1.1(a)(i). The underwriter or underwriters shall may be selected by Initiating the Holders holding a majority electing to sell their Registrable Securities, subject to the reasonable approval of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the The right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to this Section 1.1 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 to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) . Notwithstanding any other provision provisions of this Section 1.31.1, if the representative of the underwriters underwriter advises the Initiating Holders Company and the Holder(s) in writing that marketing factors require a limitation on the number of securities shares to be underwrittenunderwritten (a "Cutback"), the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities shares to be included in the underwriting or registration shall be allocated first to the Holders, without limitation, and thereafter shall be allocated among the Company and the other holders requesting inclusion in accordance with Section 1.14 hereofthe registration pro rata on the basis of the number of shares each requesting other holder (or the Company, as the case may be) requests to be included bears to the total number of shares of all requesting other holders (and the Company) that have been requested to be included in such registration. If a person who has requested inclusion in such registration as provided herein above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the Holder(s). The securities so excluded shall also be withdrawn from such registration. If securities are so withdrawn from .
(c) If, at the time any written request for registration and if is received by the number of securities to be included in such registration was previously reduced as a result of marketing factors Company pursuant to this Section 1.3(f)Section, the Company shall has determined to proceed with the actual preparation and filing of a registration statement under the Securities Act in connection with the proposed offer to all Holders and sale for cash of any of its securities by it or Other Stockholders who have retained rights to include securities any of its security holders, or in the registration event that Section 1.3 hereof is applicable, then such written request shall be deemed to have been given pursuant to Section 1.2 and Section 1.3 hereof, as the right to include additional securities in case may be, rather than this Section 1.1, and the registration in an aggregate amount equal to rights of the number of securities so withdrawnHolders covered by such written request shall be governed by Section 1.2 or Section 1.3, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofas the case may be.
Appears in 1 contract
Sources: Registration Rights Agreement (Boots & Coots International Well Control Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after the earlier of (i) three (3) years after the date hereof and on or (ii) six (6) months after prior to the effective date third anniversary of the registration statement for the Initial Public Offeringdate hereof, a upon written request by the Majority Holders to the Company, that the Company effect any the registration with respect to under the Securities Act of all or a part of the Registrable Securities, the aggregate proceeds of which Securities (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000a "REQUESTED REGISTRATION"), the Company shall:
will use its best efforts to effect the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register by the Holders within one hundred twenty (i) within ten (10120) days after receipt of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event such request or within sixty (60) days of after receipt of such requestrequest with respect to a Requested Registration, if the Company is qualified to file a registration statement covering on SEC Form S-3 or any successor or similar short-form registration statement (collectively, "SEC Form S-3") and the SEC does not subject such registration to a full review; provided, however, that the Company shall not be obligated to effect a Requested Registration pursuant to this subdivision (a), (A) unless with respect to a Requested Registration, the shares to be registered represent at least two percent (2%) of the Common Stock then outstanding and the anticipated aggregate offering price of the Registrable Securities to be sold is at least $2,000,000, in the case of registration on ▇▇▇ ▇▇▇▇ ▇-▇, or at least $5,000,000 in the case of other registrations, or (B) during the 180 day period immediately following the consummation of any previous Requested Registration pursuant to this Section. Subject to all limitations in the preceding sentence, the Company must effect no more than three Requested Registrations pursuant to this subdivision (a) to the extent such Requested Registrations may be effected on SEC Form S-3, and no more than two Requested Registrations hereunder other than on SEC Form S-3. Subject to subdivision (e), the Company may include in such Requested Registration other securities of the Company for sale, for the Company's account or for the account of any other person, if there is no underwriter and, if there is an underwriter, if and to the extent that the managing underwriter determines that the inclusion of such additional shares will not interfere with the orderly sale of the underwritten securities at a price range acceptable to the requesting Holders. Upon receipt of a written request pursuant to this subdivision (a) the Company shall promptly give written notice of such request to all Holders, and all Holders shall be afforded the opportunity to join in such request. The Company will be obligated to include in the Requested Registration such number of Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders any Holder joining in such request as are specified in a written request by such Holder received by the Company within ten (10) 20 days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Langer Biomechanics Group Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration with respect to all or a part at least 51% of the outstanding Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
and (ii) as soon as practicablepracticable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments and in any event within sixty (60other governmental requirements) days of receipt of such request, file a registration statement covering such all Registrable Securities of that the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company to be registered within ten thirty (1030) days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company; provided that the Company shall not be obligated to effect, file a registration statement pursuant to this Section 4:
(A) prior to 120 days after the closing of the Private Placement; (B) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration; or to take any action to effect, any (C) after the Company has effected one such registration pursuant to this Section 1.3:
(i) after the Company 4 and such registration has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior effective. Subject to the Company’s good faith estimate of foregoing clauses (A) through (C), the date of filing ofCompany shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, and ending on a date one hundred eighty but in any event within ninety (18090) days after receipt of the effective date of, a Company-initiated registration, provided that request or requests of the Company is actively employing in good faith all commercially Initiating Holders and shall use reasonable best efforts to cause have such registration statement to become effective; or
(iii) if promptly declared effective by the Initiating Holders propose to dispose of Commission whether or not all Registrable Securities which may requested to be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If can be included; provided, however, that if the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company and its shareholders for such registration statement to be filed in the near future within such ninety (90) days period and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the right expiration of the initial ninety-day (90-day) period within which to defer file such filing for the period registration statement; provided, that during which such disclosure would be materially detrimental, provided that time the Company may not defer such filing file a registration statement for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer securities to be issued and sold for its obligation in this manner more than once in any twelve (12) month periodown account.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(eb) 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 Section 1.3(a) hereof and request. In such event or if any underwriting is required by subsection 4(c), the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 4(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 4 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 The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) . Notwithstanding any other provision provisions of this Section 1.34, if the representative of the underwriters managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, the Initiating Holders Company shall so advise all holders of Registrable Securities that would otherwise be underwrittenHolders, and the number of securities to shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among Holders thereof in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion, as provided herein does not agree nearly as practicable, to the terms respective amounts of any Registrable Securities held by such underwritingHolders; provided, such person shall be excluded therefrom by written notice from the Companyhowever, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of that securities to be included in such registration was previously reduced as statement to be offered by the Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. If, by the withdrawal of such Registrable Securities, a result greater number of marketing factors pursuant Registrable Securities held by other Holders may be included in such registration (up to this Section 1.3(fthe limit imposed by the underwriters), the Company shall offer to all Holders or Other Stockholders holders who have retained rights to include securities included Registrable Securities in the registration the right to include additional securities Registrable Securities in the registration same proportion used in an aggregate amount equal to determining the number limitation as set forth above. Any Registrable Securities which are excluded from the underwriting by reason of securities so withdrawn, with the underwriter's marketing limitation or withdrawn from such securities to underwriting shall be allocated among withdrawn from such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofregistration.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after the earlier of (i) three (3) years after the date hereof and on or (ii) six (6) months after prior to the effective date third anniversary of the registration statement for the Initial Public Offeringdate hereof, a upon written request by the Majority Holders to the Company, that the Company effect any the registration with respect to under the Securities Act of all or a part of the Registrable Securities, the aggregate proceeds of which Securities (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000a "Requested Registration"), the Company shall:
will use its best efforts to effect the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register by the Holders within one hundred twenty (i) within ten (10120) days after receipt of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event such request or within sixty (60) days of after receipt of such requestrequest with respect to a Requested Registration, if the Company is qualified to file a registration statement covering on SEC Form S-3 or any successor or similar short-form registration statement (collectively, "SEC Form S-3") and the SEC does not subject such registration to a full review; provided, however, that the Company shall not be obligated to effect a Requested Registration pursuant to this subdivision (a), (A) unless with respect to a Requested Registration, the shares to be registered represent at least two percent (2%) of the Common Stock then outstanding and the anticipated aggregate offering price of the Registrable Securities to be sold is at least $2,000,000, in the case of registration on ▇▇▇ ▇▇▇▇ ▇-▇, or at least $5,000,000 in the case of other registrations, or (B) during the 180 day period immediately following the consummation of any previous Requested Registration pursuant to this Section. Subject to all limitations in the preceding sentence, the Company must effect no more than three Requested Registrations pursuant to this subdivision (a) to the extent such Requested Registrations may be effected on SEC Form S-3, and no more than two Requested Registrations hereunder other than on SEC Form S-3. Subject to subdivision (e), the Company may include in such Requested Registration other securities of the Company for sale, for the Company's account or for the account of any other person, if there is no underwriter and, if there is an underwriter, if and to the extent that the managing underwriter determines that the inclusion of such additional shares will not interfere with the orderly sale of the underwritten securities at a price range acceptable to the requesting Holders. Upon receipt of a written request pursuant to this subdivision (a) the Company shall promptly give written notice of such request to all Holders, and all Holders shall be afforded the opportunity to join in such request. The Company will be obligated to include in the Requested Registration such number of Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders any Holder joining in such request as are specified in a written request by such Holder received by the Company within ten (10) 20 days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Orthostrategies Acquisition Corp)
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after one hundred eighty (180) days following the earlier first registered public offering of (i) three (3) years after Company's Common Stock, regardless of whether such offering meets the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offeringthreshold size and per share price levels set forth in Section 1.2 above, a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000Securities then held by such Initiating Holders, the Company shallwill:
(i) give written notice of the proposed registration, qualification or compliance to all other Holders within ten (10) days of after receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) use its diligent best efforts to effect, as soon as practicable, all such registrations, qualifications and in any event within sixty (60) days compliances as may be so requested and as would permit or facilitate the sale and distribution of receipt all of such request, file a registration statement covering such the Registrable Securities of the held by such Initiating Holders as are specified in such requestHolders, together with all of the Registrable Securities of other any Holder or Holders joining who joins in such request as are specified in a written request received by the Company within ten thirty (1030) days after such written notice from the Company is given; provided, and use commercially reasonable efforts to effect such registration.
(b) The that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification, or compliance pursuant to this Section 1.34.2:
(iA) after In any particular jurisdiction in which the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been would be required to bear execute a general consent to service of process, to register as a dealer, or to cause any officer or employee of the Company to register as a salesman in effecting such expenses)registration, qualification or compliance;
(iiB) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date Within one hundred eighty (180) days after immediately following the effective date of, a Company-initiated registration, provided that of any registration statement pertaining to an underwritten public offering of securities of the Company is actively employing in good faith all commercially reasonable efforts to cause for its own account;
(C) After the Company has effected one (1) such registration statement pursuant to become effective; orthis Section 4.2;
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cD) If the Company shall furnish to the Initiating such Holders a certificate signed by the President Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its shareholders for such a registration statement to be filed in the near future and that it is therefore in future, then the Company's obligation to use its best interests of the Company efforts to defer the filing of such registration statementregister, the Company qualify or comply under this Section 4.2 shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing deferred for a period not to exceed one hundred eighty (180) days from the date of more than receipt of written request from the Initiating Holders; or
(E) If taking any such action could result in a registration statement being declared effective within one hundred twenty (120) days of the effective date of any registration statement filed pursuant to Section 7.2 of that certain Preferred Stock Purchase Agreement, dated as of August 4, 1987, by and between the Company, Motion Control, Inc. and the investors named therein (the "Preferred Stock Purchase Agreement"). Subject to the foregoing, the Company will use its best efforts to file a registration statement covering the Registrable Securities as soon as practicable after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(db) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, shall include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 in their request made pursuant to this Section 1.3(a) hereof 4.2 the name, if any, of the underwriter or underwriters that such Initiating Holders would propose, with the consent of the Company (which consent shall not be unreasonably withheld), to employ in connection with the public offering proposed to be made pursuant to the registration requested, and the Company shall include such information in the written notice referred to in clause (i) of Section 1.3(a) hereof4.2(a). The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to this Section 4.2 shall be conditioned upon on such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided hereinunderwriting. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding underwriting in the manner set forth above. Notwithstanding-any other provision of this Section 1.34.2, if the representative of the underwriters underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders Holders of Registrable Securities and the number of shares of Registrable Securities that would otherwise be underwritten, and the number of securities to may be included in the registration and underwriting as determined by the underwriters, shall be allocated among all Holders thereof in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion, as provided herein does not agree nearly as practicable, to the terms respective amounts of any Registrable Securities held by such underwriting, such person shall be Holders at the time of filing the registration statement. No Registrable Securities excluded therefrom by written notice from the Company, underwriting by reason of the underwriter or the Initiating Holders, and the securities so excluded underwriter's marketing limitation shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofregistration.
Appears in 1 contract
Sources: Stock Purchase Agreement (Iomed Inc)
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after one hundred eighty (180) days following the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date first registered public offering of the registration statement for Company's Common Stock, regardless of whether such offering is the Initial Public Offering, a written request that the Company effect any registration under the Act, qualification or compliance with respect to all or a part of the Registrable SecuritiesSecurities then held by such Initiating Holders, or any portion thereof the aggregate proceeds sale of which (after deduction for underwriter’s discounts and expenses related is reasonably expected to yield gross proceeds to the issuance) exceed Initiating Holders of at least $30,000,0002,000,000, the Company shallwill:
(i) give written notice of the proposed registration, qualification or compliance to all other Holders within ten (10) days of after receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) use its diligent best efforts to effect, as soon as practicable, all such registrations, qualifications and in any event within sixty (60) days compliances as may be so requested and as would permit or facilitate the sale and distribution of receipt all of such request, file a registration statement covering such the Registrable Securities of the held by such Initiating Holders as are specified in such requestHolders, together with all of the Registrable Securities of other any Holder or Holders joining who joins in such request as are specified in a written request received by the Company within ten thirty (1030) days after such written notice from the Company is given; provided, and use commercially reasonable efforts to effect such registration.
(b) The that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification, or compliance pursuant to this Section 1.33.1:
(iA) after In any particular jurisdiction in which the Company would be required to execute a general consent to service of process, to register as a dealer, or to cause any officer or employee of the Company to register as a salesman in effecting such registration, qualification or compliance;
(B) Within one hundred eighty (180) days immediately following the effective date of any registration statement pertaining to an underwritten public offering of securities of the Company for its own account;
(C) After the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)3.1;
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cD) If the Company shall furnish to the Initiating Holders a certificate signed by the President Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to a material transaction then being pursued by the Company or its stockholders for such a registration statement to be filed in the near future and future, then the Company's obligation to use its best efforts to register, qualify or comply under this Section 3.1 shall be deferred for a period not to exceed one hundred eighty (180) days from the date of receipt of written request from the Initiating Holders; provided, however, that it is therefore in the best interests of the Company shall only be entitled to defer such deferral one (1) time with respect to each registration pursuant to this Section 3.1
(b) Subject to the filing of such registration statementforegoing, the Company shall have will use its best efforts to file a registration statement covering the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days Registrable Securities as soon as practicable after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(dc) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, shall include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 in their request made pursuant to this Section 1.3(a) hereof 3.1 the name, if any, of the underwriter or underwriters that such Initiating Holders would propose, with the consent of the Company (which consent shall not be unreasonably withheld), to employ in connection with the public offering proposed to be made pursuant to the registration requested, and the Company shall include such information in the written notice referred to in clause (i) of Section 1.3(a) hereof3.1(a). The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to this Section 3.1 shall be conditioned upon on such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided hereinunderwriting. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting in the manner set forth above. Notwithstanding any other provision of this Section 1.33. 1, if the representative of the underwriters underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders Holders of Registrable Securities and the number of shares of Registrable Securities that would otherwise be underwritten, and the number of securities to may be included in the underwriting registration and underwriting, as determined by the underwriters, shall be allocated among all Holders thereof in accordance with Section 1.14 hereof. If a person who has proportion, as nearly as practicable, to the respective amounts of Registrable Securities requested inclusion to be registered by such Holders (or in such other manner as the Holders requesting registration as provided herein does not agree may elect in a written notice to the terms of any Company signed by all such underwriting, such person shall be Holders). No Registrable Securities excluded therefrom by written notice from the Company, underwriting by reason of the underwriter or the Initiating Holders, and the securities so excluded underwriter's marketing limitation shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofregistration.
Appears in 1 contract
Sources: Stockholders' Agreement (Iomed Inc)
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration registration, qualification or compliance with respect to all at least 40% of such Initiating Holders' shares of Registrable Securities (or a part any lesser number of shares if the Registrable Securities, the anticipated aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) offering price would exceed $30,000,0005,000,000), the Company shallwill:
(i1) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii2) as soon as practicable, use its best efforts to effect such registration, qualification or compliance (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and in appropriate compliance with applicable regulations issued under the Act and any event within sixty (60other governmental requirement or regulations) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten (10) 15 days after such Holder or Holders received the written notice from the Company is givenprovided for in Section 2(a)(1) above; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.32:
(i) after In any particular jurisdiction in which the Company has effected two (2) would be required to execute a general consent to service of process in effecting such registrations pursuant registration, qualification or compliance unless the Company is already subject to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)Act;
(ii) during Prior to the earlier of (i) December 31, 1996, or (ii) six months after the effective date of the Company's first registered public offering of its stock;
(iii) During the period starting with the date sixty (60) 60 days prior to the Company’s good faith estimate of the 's estimated date of filing of, and ending on a the date one hundred eighty (180) days after six months immediately following the effective date of, any registration statement pertaining to securities of the Company (other than a Company-initiated registrationregistration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing applying in good faith all commercially reasonable efforts to cause such registration statement to become effective;
(iv) After the Company has effected one such registration pursuant to this Section 2(a), and such registration has been declared or ordered effective (subject to Section 2(b) below); or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cv) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its stockholders for such a registration statement to be filed in at such time, then the near future and that it is therefore in Company's obligation to register, qualify or comply under this Section 2 shall be deferred for a period not to exceed 180 days from the best interests date of receipt of written request from the Company Initiating Holders. Subject to defer the filing of such registration statementforegoing clauses, the Company shall have file a registration statement covering the right Registrable Securities so required to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days registered as soon as practicable after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(db) The In the event that a registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold 2 is for the account of the Company.
(e) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made the notice given pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company2(a)(1). In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 2 shall be conditioned upon such Holder’s 's participation in such the underwriting arrangements required by this Section 2, and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority in interest of the Initiating Holders, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 1.32, if the representative of the underwriters managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders Company shall so advise all holders Holders, and (i) shares which are not Registrable Securities (or convertible into Registrable Securities) shall first be excluded from the registration and underwriting and (ii) if such exclusion is insufficient, the number of shares of Registrable Securities that would otherwise be underwritten, and the number of securities to may be included in the registration and underwriting shall be allocated among all Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing of the Registration Statement. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provision, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. Notwithstanding the above, such registration shall not count as the one permitted registration pursuant to Section 1.14 hereof2(a) above if the Holders are unable to register at least 90% of the Registerable Securities requested to be registered. If a person who has requested inclusion in such registration as provided herein does not agree to any Holder disapproves of the terms of any such the underwriting, such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the managing underwriter or and the Initiating Holders, and the . The Registrable Securities and/or other securities so excluded withdrawn shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to 90 days after the effective date of such registration. If securities are so withdrawn from , or such other shorter period of time as the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofunderwriters may require.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration with respect to all or a part at least 51% of the outstanding Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablepracticable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments and in any event within sixty (60other governmental requirements) days of receipt of such request, file a registration statement covering such all Registrable Securities of that the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company to be registered within ten thirty (1030) days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company; provided that the Company shall not be obligated to effect, or file a registration statement pursuant to take this Section 4:
(A) prior to 120 days after the closing of the Private Placement;
(B) in any action particular state in which the Company would be required to effect, any execute a general consent to service of process in effecting such registration; or
(C) after the Company has effected one such registration pursuant to this Section 1.3:
(i) after the Company 4 and such registration has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior effective. Subject to the Company’s good faith estimate of foregoing clauses (A) through (C), the date of filing ofCompany shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, and ending on a date one hundred eighty but in any event within ninety (18090) days after receipt of the effective date of, a Company-initiated registration, provided that request or requests of the Company is actively employing in good faith all commercially Initiating Holders and shall use reasonable best efforts to cause have such registration statement to become effective; or
(iii) if promptly declared effective by the Initiating Holders propose to dispose of Commission whether or not all Registrable Securities which may requested to be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If can be included; provided, however, that if the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company and its shareholders for such registration statement to be filed in the near future within such ninety (90) days period and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the right expiration of the initial ninety-day (90-day) period within which to defer file such filing for the period registration statement; provided, that during which such disclosure would be materially detrimental, provided that time the Company may not defer such filing file a registration statement for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer securities to be issued and sold for its obligation in this manner more than once in any twelve (12) month periodown account.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(eb) 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 Section 1.3(a) hereof and request. In such event, the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 4(a)(i). In such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 4 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 shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) . Notwithstanding any other provision provisions of this Section 1.34, if the representative of the underwriters managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, the Initiating Holders Company shall so advise all holders of Registrable Securities that would otherwise be underwrittenHolders, and the number of securities to shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among Holders thereof in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion, as provided herein does not agree nearly as practicable, to the terms respective amounts of any Registrable Securities held by such underwritingHolders; provided, such person shall be excluded therefrom by written notice from the Companyhowever, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of that securities to be included in such registration was previously reduced as a result of marketing factors pursuant statement to this Section 1.3(f)be offered by the Company, the Company its officers and employees shall offer to all Holders or Other Stockholders who have retained rights to include securities in be excluded from the registration the right to include additional securities in the registration in an aggregate amount equal statement prior to the number exclusion of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.any Registrable Securities held by the
Appears in 1 contract
Sources: Registration Rights Agreement (Caspian Services Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after February 1, 2001, and before February 1, 2011, upon written request by the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date Holders of the registration statement for the Initial Public Offering, a written request minimum number of Registrable Securities stated below that the Company effect any the registration with respect to under the Securities Act of all or a part of the Registrable Securities, the aggregate proceeds of which Securities (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000a "Requested Registration"), the Company shall:
will use its best efforts, consistent with practices customary in agreements of this nature, to register under the Securities Act the Registrable Securities which the Company has been so requested to register by the Holders within one hundred twenty (i) within ten (10120) days after receipt of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event such request or within sixty (60) days of after receipt of such request, request if the Company is qualified to file a registration statement covering on Commission Form S-3 or any successor short-form registration statement (collectively, "Commission Form S-3"); provided, however, that the Company shall not be obligated to effect a Requested Registration pursuant to this Section 4.1(a) during the one hundred eighty (180) day period immediately following the commencement of the Company's public offering of equity securities; and provided, further, that (i) the Company shall not be obligated to effect a Requested Registration of all or part of the Registrable Securities under cover of any form other than Commission Form S-3, unless (A) the Holders of at least 60% of the Registrable Securities make such request, and (B) the number of Registrable Securities in the Requested Registration exceeds 500,000 shares, (ii) the Company shall not be obligated to effect a Requested Registration of all or part of the Registrable Securities under cover of Commission Form S-3 unless (A) the Holders of in excess of at least 50% of the Registrable Securities make such request, and (B) the number of Registrable Securities in the Requested Registration exceeds 100,000 shares, and (iii) the number of shares specified in (i) and (ii) shall be proportionately adjusted to reflect any merger, consolidation, reorganization, stock dividend, stock split, combination of shares, reclassification, recapitalization, automatic conversion, redemption or other similar event affecting the number or character of outstanding shares of Common Stock. The Company must effect up to six (6) registrations pursuant to this Section 4.1(a) to the extent such registrations may be effected on Commission Form S-3, but the Company shall not be obligated to effect more than one (1) Requested Registration hereunder other than on Commission Form S-3. In the event that the Holders of at least 60% of the Registrable Securities decide to effect a Requested Registration through an underwritten offering, the Company may include in such Requested Registration other securities of the Company for sale, for the Company's account or for the account of any other Person, if and to the extent that the managing underwriter determines that the inclusion of such additional shares will not interfere with the orderly sale of the underwritten securities at a price range reasonably acceptable to those Holders whose Registrable Securities are to be included in the registration statement. If the Holders of at least 60% of the Registrable Securities do not desire to effect the Requested Registration through an underwritten offering, the Company may include in such Requested Registration other securities of the Company for sale, for the Company's account or for the account of any other Person. Upon receipt of a written request pursuant to this subsection (a), the Company shall promptly give written notice of such request to other Holders and the Company will be obligated to include in the Requested Registration such number of Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of any other Holders joining in such request as are specified in a written request by such other Holders received by the Company within ten (10) 20 days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) gives such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereofwritten notice.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Public Service Co of Oklahoma)
Requested Registration. (a) If the Company (i) shall receive from the Majority Initiating Holders, at any time or times after the earlier of (ix) three (3) years after the date hereof or (y) six (6) months after the effective date of the registration statement for the Initial Public Offering, or (ii) shall receive from the LCP Initiating Holders at any time or times after six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds offering price to the public of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed exceeds $30,000,00010,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty ninety (6090) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(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, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(ii) after the Company has effected (x) two (2) such registrations initiated by the Majority Initiating Holders and (y) three (3) such registrations initiated by the LCP Initiating Holders, in each case pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(iiiii) in a given nine (9) month period, after the Company has effected one (1) such registration in any such period;
(iv) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty ninety (18090) days after the effective date of, a Company-initiated registrationregistration (or six (6) months after the effective date of the registration statement if it is for an 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
(iiiv) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company (the “Board”) it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty ninety (12090) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (or, if an LCP Investor is the Initiating Holder, the LCP Investor) and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If Subject to the conditions set forth in this Section 2.1, if the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Offering a written request from holders of Registrable Securities (for purposes of this Section 2.1, “Holders”) collectively holding at least fifty percent (50%) or more of the Registrable Securities then outstanding (for purposes of this Section 2.1, the “Initiating Holders”) that the Company effect any file a registration statement under the Securities Act covering the registration of Registrable Securities with respect to all or a part an anticipated aggregate offering price of the Registrable Securitiesat least $5,000,000, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, then the Company shall:
, within twenty (i) within ten (1020) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; holders and
(ii) , subject to the limitations of this Section 2.1, use its reasonable best efforts to effect, as soon as practicable, and in any event within sixty (60) days the registration under the Securities Act of receipt of such request, file a registration statement covering such all Registrable Securities of that the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received by the Company within ten twenty (1020) days after such written of the mailing of the Company’s notice from the Company is given, and use commercially reasonable efforts pursuant to effect such registrationthis Section 2.1(a).
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.1, and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company2.1(a). In such event, event the right of any Holder to include such Holder’s 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 securities through such underwriting shall, together with the Company, shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (f) which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.32.1, if the representative of the underwriters underwriter advises the Initiating Holders in writing Company that marketing factors require a limitation on the number of securities to be underwrittenunderwritten (including Registrable Securities), then the Initiating Holders Company shall so advise all holders Holders of Registrable Securities that would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to 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. 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 2.1:
(a) in accordance with Section 1.14 hereof. If any particular jurisdiction in which the Company would be required to execute a person who has requested inclusion general consent to service of process in effecting such registration, unless the Company is already subject to service in such registration jurisdiction and except as provided herein does not agree may be required under the Act; or
(b) if the Company has previously effected registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective; or
(c) during the period starting with the date sixty (60) days prior to the terms Company’s good faith estimate of any 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 underwriting, such person registration statement to become effective; or
(d) if the Company shall be excluded therefrom furnish to Holders requesting a registration statement pursuant to this Section 2.1 a certificate signed by written notice from 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 underwriter or 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, and the securities so excluded provided, that such right shall be withdrawn from exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such registration. If securities are so withdrawn from ninety (90) day period (other than a registration relating solely to the registration and if the number 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 such a registration was previously reduced as statement covering the sale of the Registrable Securities, or a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to which the number only Common Stock being registered is Common Stock issuable upon conversion of debt securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofthat are also being registered).
Appears in 1 contract
Sources: Investor Rights Agreement (Silvergate Capital Corp)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after following the earlier consummation of an initial public offering of Capital Stock, the Company receives from any one (1) of (ix) three Austin Ventures, (3y) years after the date hereof BT Capital, or (iiz) six (6) months after the effective date of the registration statement for the Initial Public OfferingNationsBanc, a written request that the Company effect any a registration under the Securities Act with respect to all or a part of the Registrable Securities, the aggregate proceeds Company will, as expeditiously as possible, notify in writing all the Holders of which such request and use its diligent best efforts to effect all such registrations (after deduction for underwriter’s discounts Including, without limitation, the execution of an undertaking to file post-effective amendments and expenses related appropriate qualifications and approvals under the laws and regulations applicable to the issuanceCompany of any applicable governmental agencies and authorities, including the applicable blue sky or other state securities laws) exceed $30,000,000, as may be so requested and as would permit or facilitate the Company shall:
(i) within ten (10) days sale and distribution of receipt thereof, give written notice all or such portion of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the any Registrable Securities of held by other Holders joining who may desire to participate in such registration; provided, however, that a Holder's request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall may not be obligated to effect, made within three months following the effectiveness of any registered public offering of Capital Stock or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than within one hundred twenty (120) days after following the Company's receipt of the any effective request of the Initiating Holders. The Company may not defer its obligation in for registration pursuant to this manner more than once in subparagraph 3(a); and provided, further, that before filing any twelve (12) month period.
(d) The such registration statement filed pursuant or any amendments or supplements thereto, the Company will (x) furnish to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities which are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as copies of all such documents proposed to be filed, which documents will be subject to the review of such Holders and their counsel, and (y) give the Holders of Registrable Securities to be included in such registration statement and their representatives the opportunity to conduct a result reasonable investigation of marketing factors pursuant to this Section 1.3(f), the records and business of the Company shall offer and to all Holders or Other Stockholders who have retained rights to include securities participate in the registration the right to include additional securities in the registration in an aggregate amount equal to the number preparation of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.any such
Appears in 1 contract
Sources: Registration Rights Agreement (Classic Communications Inc)
Requested Registration. (a) If In case the Company shall receive from [2] or the Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable and in any event within sixty one hundred twenty (60120) days of after receipt of such written request, use its commercially reasonable efforts to effect such registration, qualification or compliance (including, without limitation, the execution of an undertaking to file a registration statement covering post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such receipt of the written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.31.5:
(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, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) With respect to the Initiating Holders, prior to the earlier of (1) January 1, 2002 or (2) six months after the effective date of the Company’s Initial Public Offering;
(C) With respect to [2], prior to six months after the effective date of the Company’s Initial Public Offering;
(D) At the request of the Initiating Holders after the Company has effected two (2) such registrations at the request of the Initiating Holders pursuant to this Section 1.3 (counting for these purposes only registrations which have subparagraph 1.5(a), each such registration has been declared or ordered effective and registrations which the securities offered pursuant to each such registration have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)sold;
(iiE) during At the request of [2] after the Company has effected one (1) such registration at the request of [2] pursuant to this subparagraph 1.5(a), such registration has been declared or ordered effective and the securities offered pursuant to such registration have been sold;
(F) At the joint request of the Initiating Holders and [2] after the Company has effected one (1) such registration at the joint request of the Initiating Holders and [2] pursuant to this subparagraph 1.5(a), such registration has been declared effective or ordered effective and the securities offered pursuant to such registration have been sold;
(G) If the anticipated gross proceeds to be received by such Holders are less than $10,000,000;
(H) During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty ninety (18090) days after the effective date of, a registration initiated by the Company-initiated registration, ; provided that the Company is actively employing employed in good faith in all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if effective and provided further that the rights of the Initiating Holders propose to dispose of include Registrable Securities which may for registration in the Company’s registration shall be governed by Section 1.6 hereof. Subject to the foregoing clauses (A) through (H), the Company shall file a registration statement covering the Registrable Securities so requested to be registered on Form S-3 pursuant as soon as practicable after receipt of the request or requests of [2] or the Initiating Holders; provided that if (i) in the good faith judgment of the board of directors of the Company, such registration would be seriously detrimental to the Company and the board of directors of the Company concludes, as a request made under Section 1.5 hereof.
result, that it is essential to defer the filing of such registration statement at such time, and (cii) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board board of Directors directors of the Company Company, it would be materially seriously detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of not more than one hundred twenty eighty (120180) days after receipt of the request of the Initiating Holders. The , and provided further that the Company may shall not defer its obligation in this manner more than once in any twelve (12) twelve-month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Investor Rights Agreement
Requested Registration. (a) If at any time, and from time to time, after June 30, 1997 and prior to December 31, 2003, one or more of the Holders shall notify the Company shall receive from Initiating Holders, at any time in writing that such Holder or times after the earlier of (i) three (3) years after the date hereof Holders intend to offer or (ii) six (6) months after the effective date of the registration statement cause to be offered for the Initial Public Offering, a written request that the Company effect any registration with respect to public sale all or a part any portion of the their Registrable Securities, the aggregate proceeds Company will notify all of which (after deduction for underwriter’s discounts and expenses related the other Holders of its receipt of such notification from such Holder or Holders. Upon the written request of any such remaining Holder delivered to the issuance) exceed $30,000,000Company within 15 days after receipt from the Company of such notification, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and will use commercially reasonable efforts to effect cause such registration.
of the Registrable Securities as may be requested by the Holders to be registered under the Act in accordance with the terms of this Section 2 (b) The "Demand Registration"). Notwithstanding the foregoing, the Company shall not be obligated required to effect, or to take any action to effect, any such a registration requested pursuant to this Section 1.32 if any of the following conditions exist:
(i) after if the Company has effected two (2) such registrations Demand Registrations for the Holders pursuant to this Section 1.3 2 in the preceding twelve (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)12) months or;
(ii) during if the period starting with request for registration has been received by the date sixty (60) days prior Company subsequent to the giving of written notice by the Company’s , made in good faith estimate of faith, to the date of filing of, and ending on a date one hundred eighty (180) days after Holders to the effective date of, effect that the Company is commencing to prepare a Company-initiated registrationregistration statement (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 or any other similar rule of the Commission under the Securities Act is applicable); The Company may postpone the filing of any registration statement required hereunder for a reasonable period time, provided that not to exceed 120 days, if the Company is actively employing has been advised by legal counsel that such filing would require the disclosure of a material transaction or other factor and the Company determines reasonably and in good faith all commercially reasonable efforts to cause that such registration statement to become effective; or
(iii) if disclosure would have a material adverse effect on the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereofCompany.
(cb) If In any Demand Registration, the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company included therein shall have the right to defer select the investment banker or bankers and manager or managers to administer the offering; provided, however, that such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders investment banker or bankers and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter manager or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be managers is reasonably acceptable satisfactory to the Company. In such event, If the right manager or managers deliver an opinion to the Holders that the total amount of any Holder securities which other persons or entities (by virtue of "piggy-back" or similar registration rights) intend to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting offering is sufficiently large to materially and adversely affect the inclusion success of such Holder’s Registrable Securities in offering, then the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter amount or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number kind of securities to be underwritten, offered for the Initiating Holders shall so advise all holders accounts of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting such other persons or entities shall be allocated in accordance reduced pro rata with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree respect to each holder to the terms of any such underwriting, such person shall be excluded therefrom by written notice from extent necessary to reduce the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number total amount of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal offering to the number amount recommended by such manager or managers. The amount or kind of securities so withdrawn, with such securities to be allocated among offered for the accounts of the Holders shall not be so reduced.
(c) The Company shall use commercially reasonable efforts to keep any Demand Registration effective until the earlier of (i) six months following the date on which the registration statement relating thereto was declared effective and (ii) the sale pursuant to such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofregistration statement of the Registrable Securities covered thereby.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof March 31, 1998, or (ii) six three (63) months after the effective date of the first registration statement for a public offering of securities of the Initial Public OfferingCompany (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders of at least twenty-five percent (25%) of the Registrable Securities then outstanding that the Company effect any file a registration with respect to all or a part statement under the Act coveting the registration of the lesser of (A) at least twenty-five percent (25%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price would exceed $2,000,000) or (B) 250,000 Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 3.2(b), effect as soon as practicable, and in any event within sixty ninety (6090) days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities which the Holders request to be registered within twenty (20) days of the Initiating Holders as are specified in mailing of such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 5.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by If the Holders as to which initiating the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
registration request hereunder (ii"INITIATING HOLDERS") during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 3.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 3.2(a). In such event, the right of any Holder to include such Holder’s 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 Holders participating in such public offering (the "PARTICIPATING HOLDERS") and the underwriter of such offering) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority interest of the Participating Holders. Notwithstanding any other provision of this Section 1.33.2, if the representative of the underwriters underwriter advises the Initiating Participating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders number of shares of Registrable Securities that would otherwise be underwritten, and the number of securities to may be included in the underwriting shall be allocated among all Participating Holders in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion (as provided herein does not agree nearly as practicable) to the terms amount of any Registrable Securities of the Company owned by each Participating Holder.
(c) The Company is obligated to effect only two (2) such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors registrations pursuant to this Section 1.3(f)3.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities defer such filing for a period of not more than ninety (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 the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofany twelve (12) month period.
Appears in 1 contract
Sources: Series E Preferred Stock Purchase Agreement (Abbott Laboratories)
Requested Registration. (a) If Upon the written request of the Subscriber that the Company effect a shelf registration under the Securities Act of shares of Common Stock held by the Subscriber and specifying the intended method of disposition thereof, the Company shall receive from Initiating Holdersuse its best efforts to effect such registration under the Securities Act of the requested number of shares of Common Stock (the "Requested Shares") to the extent required to permit the disposition (in accordance with the intended methods as specified by the Subscriber) of the Requested Shares pursuant to Rule 415; provided, however, that (i) the Company shall not be required to effect any such registration at any time when an exemption from registration is otherwise available to the Subscriber affording the Subscriber the right to dispose of all of the shares of Common Stock held by the Subscriber; (ii) the Company shall be required to effect no more than one (1) registration(s) for the Subscriber in any twelve month period (including any registration effected pursuant to Section 4.2 hereof); and (iii) the Company shall not be required to effect a registration under this Section 4.1 if it does not qualify for use of Form S-3 (or times after any successor form) for the registration of the Requested Shares. Any registration requested pursuant to this Section 4.1 shall be effected by the filing of a registration statement on Form S-3 (or any other form that includes substantially the same information as would be required to be included in a registration statement on such forms as presently constituted, other than a registration statement relating to offers to employees pursuant to plans or of securities to be issued in business combinations). The Company shall use its reasonable efforts to keep such registration statement continuously effective until the earlier of (i) three (3) years after such time as RMS shall have sold all of the date hereof Requested Shares or (ii) six (6) months after the effective date all of the registration statement for the Initial Public Offering, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not Shares may be obligated to effect, or to take any action to effect, any such registration sold pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expensesRule 144(k);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) a. If the Company shall receive from the Initiating Holders, Holders at any time or times after not earlier than the earlier later of (i) three twenty four (3) years after the date hereof or (ii) six (624) months after the effective date of the registration statement for the Initial Public OfferingOffering and (ii) December 31, 1999, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, and only in the event that the aggregate proceeds offering price (net of which (after deduction for underwriter’s underwriting discounts and expenses related to the issuance) exceed of the Registrable Securities proposed to be registered equals or exceeds $30,000,00010,000,000, the Company shall:
(i) will within ten (10) calendar days of the receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable. Each such Holder shall have the right, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a by giving written request received by notice to the Company within ten (10) calendar days after receipt of the Company's notice, to elect to include some or all of such written Holder's Registrable Securities in such registration statement. Such notice from of election shall set forth the number of such Holder's Registrable Securities requested to be included in such registration statement. The Company is givenshall, and use commercially reasonable efforts subject to effect such registrationthe limitations set forth in Section 43(b), file as soon as practicable a registration statement covering all Registrable Securities which the Holders have timely requested to be registered.
(b) b. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.343:
(i) after in any particular jurisdiction in which the Company has effected two (2) would be required to execute a general consent to service of process in effecting such registrations pursuant registration, qualification, or compliance, unless the Company is already subject to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)Securities Act;
(ii) during the period starting with the date sixty (60) calendar days prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date one hundred eighty and twenty (180120) calendar days after the effective date of, a Company-initiated registration, registration statement; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; orand
(iii) if the more than twice with respect to any Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereofHolder.
c. If (ci) If in the good faith judgment of the Board of Directors of the Company such registration would adversely affect the Company, and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Company, it would be materially detrimental to adversely affect the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimentaladversely affect the Company, provided that that, except as provided in Section 43(b)(ii) above, the Company may not defer such the filing for a period of more than one hundred and twenty (120) calendar days after the receipt of the request of the Initiating Holders. The Holders and, provided further, that the Company may shall not defer its obligation in this manner more than once in any twelve (12) month period.
(d) . The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereofSections 43(b) and 410, include Other Shares held by Other Stockholders other securities of the Company, with respect to which registration rights have been granted, and may include securities of the Company being sold for the account of the Company.
(e) d. If the Initiating Holders intend to distribute the their Registrable Securities covered by their request by means of an underwritingunderwritten public offering, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof the Company and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company43(a). In such event, the right of any Holder to include such Holder’s '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 the Initiating Holders) to the extent provided herein. All Holders proposing to distribute their 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 underwritingunderwriting by the Company.
(f) e. Notwithstanding any other provision of this Section 1.343, if the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwritten public offering and if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities shares to be underwrittenunderwritten or registered, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities shares to be included in the underwriting or registration shall be allocated as set forth in accordance with Section 1.14 hereof410. If a person who has requested inclusion in such registration as provided herein above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter Company or the Initiating Holders, and the underwriter. Any Registrable Securities or other securities so excluded shall also be withdrawn from such registration. If securities shares are so withdrawn from the registration and if the number of securities shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f43(e), then the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities shares so withdrawn, with such securities shares to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof410.
Appears in 1 contract
Requested Registration. (a) If If, at any time after the date which is the second anniversary of the Closing Date, the Company shall receive from Initiating Holdersholders of Series D Registrable Securities or Purchased Shares representing, in the aggregate, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date least 50% of the registration statement for the Initial Public OfferingSeries D Registrable Securities (which calculation shall include all Series D Registrable Securities then outstanding and all Series D Registrable Securities into which all Purchased Shares then outstanding may be converted), a written request (which shall specify whether the distribution will be made by means of an underwriting) that the Company effect any a registration (a "Demand Notice") with respect to all or a part of the Series D Registrable Securities, which Demand Notice shall request registration of not less than 1,000,000 shares (subject to appropriate adjustments in the event of stock splits or similar events) of Common Stock or registration of Common Stock in connection with a registered offering involving anticipated aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed at least $30,000,00050 million, the Company shall:
(i) within ten (10) days of receipt thereofwill, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty use its reasonable best efforts to effect such registration under the Securities Act (60) days which shall be a "shelf" Registration Statement pursuant to Rule 415 under the Securities Act (or a successor provision), if so requested by the Holders of receipt a majority of such request, file a registration statement covering such the Series D Registrable Securities specified in the Demand Notice and if the Company is eligible therefor at such time) as may be so requested and as would permit or facilitate the sale and distribution of the Initiating Holders Series D Registrable Securities as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after . After the Company has effected two three (23) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which 9.1(a), the related Registration Statements have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and woulddistribution contemplated thereunder completed, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made shall have no further obligation under this Section 1.5 hereof9.1(a).
(cb) If Notwithstanding any other provision of this Section 9.1, if the Company shall furnish to the Initiating Holders who have elected to exercise their rights under Sections 9.1(a) (each, an "Exercising Holder") a certificate signed by the President or the Chief Executive Officer of the Company stating that the requested registration and offering would require the disclosure of material non-public information and, in the good faith judgment of the Board of Directors of the Company it Company, such disclosure in a Registration Statement to be filed pursuant to Section 9.1(a) would be materially seriously detrimental to the Company for such registration statement to be filed in the near future and that its stockholders and it is therefore desirable and in the best interests of the Company to defer the filing of such registration statementRegistration Statement, then the Company shall have the right to defer such filing for the a period during which of time after receipt of such disclosure would be materially detrimentalrequest; provided, provided however, that the Company may not make such a request more than twice in any 12-month period and the aggregate period of time during which the Company may defer such filing for a period shall not exceed 90 days.
(c) If the Company or any stockholder, other than an Exercising Holder, wishes to offer any of more its securities in connection with any registration initiated pursuant to this Section 9.1, other than one hundred twenty (120) days after receipt pursuant to any "piggy back" or other similar registration rights granted by the Company prior to or as of the request date hereof, no such securities may be offered by the Company or such other stockholder without the consent of the Initiating Holders. The Company may not defer its obligation Holders of a majority of the Series D Registrable Securities (referred to herein as "Registrable Securities") specified in this manner more than once in any twelve (12) month periodthe Demand Notice related to such offering.
(d) The registration statement filed In connection with any underwritten offering pursuant to this Section 9.1, Exercising Holders shall have the request of right to select the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters underwriters, which shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be nationally recognized investment banking firm or firms reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sirius Satellite Radio Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof March 30, 1999, or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date ofof the first registration statement for a public offering of securities of the Company (the "INITIAL PUBLIC OFFERING") (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 to an SEC Rule 145 transaction), a Company-initiated registration, provided written request from the Holders of at least forty percent (40%) of the Registrable Securities then outstanding that the Company is actively employing in good faith all commercially reasonable efforts to cause such file a registration statement to become effective; or
(iii) if under the Initiating Holders propose to dispose Securities Act for the sale of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
for an aggregate public offering price of at least ten million dollars (c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement$10,000,000), the Company shall have notify within ten (10) days of receipt thereof, in writing, all Holders of Registrable Securities of such request, and shall use its best efforts to effect as soon as practicable the right registration under the Act of all Registrable Securities which the Holders request to defer be registered within twenty (20) days of the mailing of such filing for the period during which such disclosure would be materially detrimental, provided that notice by the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month periodaccordance with Section 5.5.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(eb) 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 1.3(a) hereof 2.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 2.2(a). In such event, the right of any Holder to include such Holder’s 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 securities Registrable Securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 1.32.2, if the representative of the underwriters underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to shares of Registrable Securities that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwritingamong all Holders thereof, such person shall be excluded therefrom by written notice from the Company, the underwriter or including the Initiating Holders, and in proportion (as nearly as practicable) to the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from amount of Registrable Securities of the registration and if Company owned by each Holder; provided, however, that the number of securities shares of Registrable Securities to be included in such registration was previously underwriting shall not be reduced as a result of marketing factors unless all other securities are first entirely excluded from the underwriting.
(c) The Company is obligated to effect only two (2) such registrations pursuant to this Section 1.3(f)2.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for such registration statement to be filed, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities defer such filing for a period of not more than one hundred eighty (180) days after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than once in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofany twelve (12) month period.
Appears in 1 contract
Sources: Investor Rights Agreement (Softbank Holdings Inc Et Al)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written Holder shall request that the Company effect any the registration with respect of shares of Common Stock held by Holder and the requested registration relates to all or a part an offering (i) of at least 10% of the Registrable Securitiesaggregate shares of Common Stock of the Company Beneficially Owned by HEA at the closing of the Public Offering, the and (ii) with reasonably anticipated aggregate proceeds (net of which (after deduction for underwriter’s discounts and any underwriters discount or any expenses related to of the issuanceoffering) exceed of $30,000,00050,000,000 or more, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and shall use commercially its reasonable commercial efforts to effect such the requested registration.
(b) The , provided that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration pursuant to this Section 1.3:
(i) 3.2 after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only 3.2 and such registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses effective. Any registration effected pursuant to Section 1.6 hereof and would, absent such election, have been 3.3 shall not reduce the number of registrations which the Company is required to bear such expenses);
(ii) during effect under this Section 3.2. The rights granted by this Section 3.2 may be exercised from time to time, but the period starting with the date sixty (60) days prior Company shall not be required to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the make any registration effective date of, a Company-initiated registrationunder this Section 3.2 more than once in any calendar year, provided that HEA, but not any other Holder, may request one (1) additional registration during any calendar year which may be effected by the Company in its sole discretion.
2. If it is determined as provided above that there will be such interference, the other shares of Common Stock sought to be included by the Company shall be excluded to the extent deemed appropriate by the managing underwriter or, if there is no managing underwriter, Holder, provided that if less than all shares proposed to be included by the Company are excluded, and the Company is actively employing in good faith all commercially reasonable efforts seeking to cause such registration statement to become effective; or
(iii) if register shares of Common Stock for persons other than the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statementCompany, the Company shall have the right to defer such filing for the period during determine in its sole discretion which such disclosure would shares other than those offered by Holder(s) will be materially detrimentalexcluded from the registration. If the requested registration is an underwriting, the managing and other underwriters will be selected by Holder, provided such underwriters shall be reasonably satisfactory to the Company. If the requested registration is not a firm commitment, underwritten offering and the Company requests that it be made in such an offering of the same size and during the same period, Holder will change the form of the offering to a firm commitment, underwritten offering, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt managing and other underwriters and the terms of the request underwriting, including without limitation the underwriters discount, are reasonably satisfactory to Holder."
3. The last paragraph of Section 3.4 of the Initiating Holders. The Stockholder Agreement shall be amended and restated in its entirety as follows: "All expenses incurred by the Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders maycomplying with Sections 3.2, subject to the provisions of Section 1.14 3.3 and 3.4 hereof, include Other Shares held including without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company, blue sky fees and expenses, and the expense of any special audits incident to or required by Other Stockholders and may include securities any such registration (but excluding the compensation of regular employees of the Company being sold for the account of which shall be paid in any event by the Company) are hereinafter called "Registration Expenses" and all underwriting discounts and selling commissions applicable to the sales are herein called "Selling Expenses.
" The Company will pay all Registration Expenses in connection with up to two (e2) 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 registrations pursuant to Section 1.3(a) hereof and 3.2. All Selling Expenses in connection with each registration pursuant to Section 3.2 or 3.3 shall be borne by the seller of the securities on which they are imposed. All Registration Expenses other than those payable by the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected borne by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding Holder and any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders selling stockholders pro rata in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree proportion to the terms securities covered thereby being sold by them. Each Holder shall bear the fees and costs of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofits own counsel."
Appears in 1 contract
Sources: Stockholder Agreement (Maxtor Corp)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after the earlier of of: (i) three (3) years after the date hereof Company's initial public offering of equity securities, or (ii) six (6) months after the effective second anniversary of the date of the registration statement for the Initial Public Offeringthis Agreement, a upon written request by the Majority Investors that the Company effect any the registration with respect to under the Securities Act of all or a part of the Registrable Securities, the aggregate proceeds of which Securities (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000a "Requested Registration"), the Company shall:
shall use its diligent efforts to effect the registration under the Securities Act of the Registrable Securities that the Company has been so requested to register by such Majority Investors within ninety (i) within ten (1090) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of after receipt of such request, request or within forty-five (45) days after receipt of such request if the Company is qualified to file a registration statement covering such Registrable Securities of on Commission Form S-3 or any successor or similar short-form registration statement (collectively, "Commission Form S-3"); provided, however, that (i) the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration effect a Requested Registration on Commission Form S-3 pursuant to this Section 1.3:
2(a) unless the anticipated aggregate offering price of the Registrable Securities to be sold pursuant thereto is at least $5,000,000 in the aggregate and (iii) after each Investor, acting alone, shall have the right to request that the Company has effected two register all or any portion of such Investor's Registrable Securities (2subject to the $5,000,000 aggregate offering threshold referenced above) if the Company is qualified to file a registration statement on Commission Form S-3, whether or not the Majority Investors join in such request, and thereupon the Company shall use its diligent efforts to effect such registration in accordance with the provisions hereof. The Company must effect an unlimited number of registrations pursuant to this Section 1.3 2(a) to the extent such registrations may be effected on Commission Form S-3 (counting for these purposes only registrations which have been declared and meet the $5,000,000 aggregate offering threshold referenced above); provided, however, that (i) the Company shall not be obligated to effect more than three (3) Requested Registrations hereunder on Commission Form S-1 or ordered effective any other Commission Form other than Commission Form S-3; and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting Company shall not be obligated to keep effective at any one time more than three registration statements on Commission Form S-3 with respect to Registrable Securities requested to be registered in accordance with this Section 2(a), and if the Company is requested to effect the registration of Registrable Securities on Commission Form S-3 at a time when it is keeping three such registration statements effective, it may delay effecting such Requested Registration until it is no longer required in accordance with Section 3(a)(iii) to keep effective one of the then effective registration statements on Commission Form S-3. Subject to Section 2(f) and the next succeeding sentence of this section 2(a), the Company may include in such Requested Registration other securities of the Company for sale, for the Company's account or for the account of any other person, if and to the extent that the managing underwriter determines that the inclusion of such additional shares will not interfere with the date sixty orderly sale of the Registrable Securities subject to such Requested Registration at a price range approved in writing by the Majority Investors. Upon receipt of any such written request by the Majority Investors that the Company effect a Requested Registration, the Company will notify each other Investor of such request at least thirty (6030) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, and upon the request of any such Investor given in writing within fifteen (15) days after the receipt of such notice, subject to Section 2(f), the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in as soon as practicable thereafter cause any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held specified by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities Investor to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders statement (and any related qualification under blue sky laws or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal other compliance) to the number extent such registration is permissible under the Securities Act and subject to the conditions of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofthe Securities Act.).
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof March 31, 1998, or (ii) six three (63) months after the effective date of the first registration statement for a public offering of securities of the Initial Public OfferingCompany (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders of at least twenty-five percent (25%) of the Registrable Securities then outstanding that the Company effect any file a registration with respect to all or a part statement under the Act covering the registration of the lesser of (A) at least twenty-five percent (25%) of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price would exceed $2,000,000) or (B) 250,000 Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 3.2(b), effect as soon as practicable, and in any event within sixty ninety (6090) days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities which the Holders request to be registered within twenty (20) days of the Initiating Holders as are specified in mailing of such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 5.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by If the Holders as to which initiating the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
registration request hereunder (ii"INITIATING HOLDERS") during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 3.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 3.2(a). In such event, the right of any Holder to include such Holder’s 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 Holders participating in such public offering (the "PARTICIPATING HOLDERS") and the underwriter of such offering) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority in interest of the Participating Holders. Notwithstanding any other provision of this Section 1.33.2, if the representative of the underwriters underwriter advises the Initiating Participating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwrittenunder,mitten, then the Initiating Holders shall so advise all holders number of shares of Registrable Securities that would otherwise be underwritten, and the number of securities to may be included in the underwriting shall be allocated among all Participating Holders in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion (as provided herein does not agree nearly as practicable) to the terms amount of any Registrable Securities of the Company owned by each Participating Holder.
(c) The Company is obligated to effect only two (2) such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors registrations pursuant to this Section 1.3(f)3.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities defer such filing for a period of not more than ninety (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 the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofany twelve (12) month period.
Appears in 1 contract
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable and in any event within sixty one hundred twenty (60120) days of after receipt of such written request, use commercially reasonable efforts to effect such registration, qualification or compliance (including, without limitation, the execution of an undertaking to file a registration statement covering post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such receipt of the written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.31.5:
(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, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) Prior to the earlier of (1) four (4) years after the date of this agreement or (2) six (6) months after the effective date of the Company’s initial public offering;
(C) After the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have subparagraph 1.5(a), such registration has been declared or ordered effective and registrations which the securities offered pursuant to each such registration have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)sold;
(iiD) during During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration initiated by the Company-initiated registration, ; provided that the Company is actively employing employed in good faith in all commercially reasonable efforts to cause such registration statement to become effectiveeffective and provided further that the rights of the Initiating Holders to include Registrable Securities for registration in the Company’s registration shall be governed by Section 1.6 hereof; or
(iiiE) if If such registration, qualification or compliance involves securities with an aggregate value less than Five Million Dollars ($5,000,000). Subject to the foregoing clauses (A) through (E), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders propose Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such registration would be seriously detrimental to dispose the Company and the Board concludes, as a result, that it is essential to defer the filing of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
such registration statement at such time, and (cii) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Board, it would be materially seriously detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may up to two (2) periods of not defer such filing for a period of more than one hundred twenty sixty (12060) days each after receipt of the request of the Initiating Holders. The , and provided further, that the Company may shall not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Tobira Therapeutics, Inc.)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after hereof, Holder may deliver to the effective date of the registration statement for the Initial Public Offering, Company a written request (a “Registration Request”) that the Company effect any file and use its best efforts to cause to become effective a “shelf” registration statement on Form S-3 (or if Form S-3 is not then available, Form S-1 or such other form that the Company is eligible to use with respect to all or the Eligible Securities) under the Securities Act for an offering to be made on a part continuous basis pursuant to Rule 415 under the Securities Act with respect to such number of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) Eligible Securities owned by Holder as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are shall be specified in such request; provided, together with however, that the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated required to effect, effect more than two registrations on Form S-1 (or to take any action to effect, successor form) and two registrations on Form S-3 (or any such registration successor form) pursuant to this Section 1.3:
(i) after 2.1. If such offering is to be an underwritten offering, the Company has effected two (2) such registrations pursuant managing underwriter or underwriters must be reasonably acceptable to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective both Holder and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may acceptance shall not be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holdersunreasonably withheld. The Company may not defer its obligation in this manner more than once shall also be entitled to include in any twelve (12) month period.
(d) The registration statement filed pursuant to a Registration Request, for sale in accordance with the request method of the Initiating Holders maydisposition specified in such Registration Request, subject to the provisions such number of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities shares of Common Stock as the Company being sold shall be contractually obligated to sell for the account of other security holders. Notwithstanding the Company.
(e) If foregoing provisions of this Section 2.1(a), to the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwritingextent that, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The opinion of the underwriter or underwriters (if the method of disposition shall be selected by Initiating Holders holding a majority an underwritten public offering), marketing considerations require the reduction of the Registrable Securities held number of shares of Common Stock covered by all Initiating Holders and shall be reasonably acceptable to the Company. In any such eventregistration, the right number of any Holder shares of Common Stock to include such Holder’s Registrable Securities in be registered and sold pursuant to such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shallreduced as follows: (i) First, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities shares of Common Stock to be underwrittenregistered on behalf of Persons other than the Holder, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwrittenif any, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree reduced (to the terms of any such underwritingzero, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal necessary) pro rata according to the number of securities so withdrawn, shares of restricted Common Stock held by each to the extent permitted by the Company’s agreements with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.Persons; and
Appears in 1 contract
Sources: Convertible Senior Subordinated Promissory Note and Warrant Purchase Agreement (Electric City Corp)
Requested Registration. If, (ax) If following the 180 days ---------------------- after the closing of a Qualified IPO, the Company shall receive receives from either the Silverado Initiating Holders, at any time Holders or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, TPG Initiating Holders a written request that the Company effect a registration under the Securities Act (provided that as to the Silverado Initiating Holders there shall be no more than one such registration statement in any registration with respect to all one year) or (y) at any time after the Company has a part class of equity securities registered under Section 12 of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000Exchange Act, the Company shallreceives from the New York Life Initiating Holders or the Crescent Initiating Holders a written request to effect a registration under the Securities Act, the Company will:
(ia) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(iib) as soon as practicable, use its reasonable best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws, and in any event within sixty (60appropriate compliance with applicable regulations issued under the Securities Act) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company given within ten fifteen (1015) days after receipt of such written notice from the Company is givenprovided that (x) the New York Life Initiating Holders and the Crescent Initiating Holders are each entitled to two registrations pursuant to this Section 4.1, no more than one of which may be effected in any given 12-month period; and use commercially reasonable efforts to effect such registration.
(by) The that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification, or compliance pursuant to this Section 1.34.1:
(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, qualification, or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(ii) During the period of 180 days following the effective date of the registration statement pertaining to a registered public offering of securities of the Company for cash for its own account (other than a registration relating solely to a Commission Rule 145 transaction or a registration relating solely to employee benefit plans); or
(iii) With respect to the Silverado Initiating Holders, after the Company has effected two (2) such registrations on behalf of the Silverado Initiating Holders requesting registration pursuant to this Section 1.3 (counting for these purposes only 4.1 and such registrations which have been declared or ordered effective and effective, with respect to the New York Life Initiating Holders, after the Company has effected two registrations which have been withdrawn by on behalf of the New York Life Initiating Holders as to which the Holders have not elected to bear the Registration Expenses requesting registrations pursuant to Section 1.6 hereof 4.1 and would, absent such election, registrations have been required declared effective (subject to bear such expensesparagraph (f);
(ii) during the period starting ), and, with the date sixty (60) days prior respect to the Company’s good faith estimate Crescent Initiating Holders, after the Company has effected two registrations on behalf of the date of filing of, Crescent Initiating Holders requesting registrations pursuant to Section 4.1 and ending on a date one hundred eighty such registrations have been declared effective (180subject to paragraph (f)). Subject to the foregoing clauses (i) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
through (iii) if the Initiating Holders propose and to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement4.1(d), the Company shall have file a registration statement covering the right Registrable Securities so requested to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days registered as soon as practicable after receipt of the request of the Silverado Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to , the request of TPG Initiating Holders, the New York Life Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Crescent Initiating Holders, and the securities so excluded shall be withdrawn from in no event later than 90 days after receipt of such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofrequest.
Appears in 1 contract
Sources: Stockholders Rights Agreement and Voting Agreement (Beringer Wine Estates Holdings Inc)
Requested Registration. (a) If Subject to the conditions set forth in this Section 2.1, if the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Offering a written request from Investors holding Registrable Securities (for purposes of this Section 2.1, “Holders”) holding at least fifty percent (50%) or more of the Registrable Securities then outstanding (for purposes of this Section 2.1, the “Initiating Holders”) that the Company effect any file a registration statement under the Securities Act covering the registration of Registrable Securities with respect to all or a part an anticipated aggregate offering price of the Registrable Securitiesat least $5,000,000, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, then the Company shall:
, within twenty (i) within ten (1020) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; holders and
(ii) , subject to the limitations of this Section 2.1, use its reasonable best efforts to effect, as soon as practicable, and in any event within sixty (60) days the registration under the Securities Act of receipt of such request, file a registration statement covering such all Registrable Securities of that the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received by the Company within ten twenty (1020) days after such written of the mailing of the Company’s notice from the Company is given, and use commercially reasonable efforts pursuant to effect such registrationthis Section 2.1(a).
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.1, and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company2.1(a). In such event, event the right of any Holder to include such Holder’s 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 securities through such underwriting shall, together with the Company, shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (f) which underwriter or underwriters shall be reasonably acceptable to the Company. Notwithstanding any other provision of this Section 1.32.1, if the representative of the underwriters underwriter advises the Initiating Holders in writing Company that marketing factors require a limitation on the number of securities to be underwrittenunderwritten (including Registrable Securities), then the Initiating Holders Company shall so advise all holders Holders of Registrable Securities that would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to 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. 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 2.1:
(1) in accordance with Section 1.14 hereof. If any particular jurisdiction in which the Company would be required to execute a person who has requested inclusion general consent to service of process in effecting such registration, unless the Company is already subject to service in such registration jurisdiction and except as provided herein does not agree may be required under the Act; or
(2) if the Company has previously effected a registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective; or
(3) during the period starting with the date sixty (60) days prior to the terms Company’s good faith estimate of any 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 underwriting, such person registration statement to become effective; or
(4) if the Company shall be excluded therefrom furnish to Holders requesting a registration statement pursuant to this Section 2.1 a certificate signed by written notice from 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 underwriter or 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, and the securities so excluded provided, that such right shall be withdrawn from exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such registration. If securities are so withdrawn from ninety (90) day period (other than a registration relating solely to the registration and if the number 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 such a registration was previously reduced as statement covering the sale of the Registrable Securities, or a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to which the number only Common Stock being registered is Common Stock issuable upon conversion of debt securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofthat are also being registered).
Appears in 1 contract
Sources: Investors’ Rights Agreement (Silvergate Capital Corp)
Requested Registration. (a) If the Company shall receive from the Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other HoldersHolders in accordance with Section 3.4 hereof; and
(ii) subject to the terms and conditions of this Section 2.1, as soon as practicable, and but in any event within sixty one hundred twenty (60120) days of after receipt of a request for registration, use its best efforts to effect such requestregistration (including, file a registration statement covering without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and appropriate compliance with the Securities Act) as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) mailed or delivered in accordance with Section 3.4 hereof. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.32.1:
(iA) after in any particular jurisdiction in which the Company has effected two 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 by the Securities Act;
(2B) such registrations if the Company has, pursuant to this Section 1.3 (counting for these purposes only registrations Agreement, effected registration of all Registrable Securities requested to be registered, which have registration has been declared or ordered order effective and registrations pursuant to which securities have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)sold;
(iiC) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, of a Company-initiated registration, ; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iiiD) if the Initiating Holders propose to dispose of shares of Registrable Securities which may be immediately registered on Form S-3 pursuant to a request made under Section 1.5 2.3 hereof.
(cb) If Subject to the foregoing clauses (A) through (E), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the Board of Directors of the Company, such registration would be materially detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Company, it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimentalfiling, provided that the Company may not defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The , and, provided further, that the Company may shall not defer its obligation in this manner more than once one (1) time in any twelve (12) month period.
. If the Company elects to defer such filing pursuant to this Section 2.1(b), the Company shall use its best efforts to file a registration statement covering the Registrable Securities so requested to be registered within thirty (d30) days of the expiration of the one hundred twenty (120) day deferral period. The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 2.1(d) hereof, include Other Shares held by Other Stockholders other securities of the Company, with respect to which registration rights have been granted and may include securities of the Company being sold for the account of the Company.
(ec) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of requested registration is an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such eventunderwritten offering, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 2.1(a) 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 with respect to such participation and inclusion) to the extent provided herein. A Holder may elect to include in such underwriting all or a part of the Registrable Securities such Holder holds. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If Registrable Securities or other securities are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to Section 2.1(d), then the Company shall offer to all Holders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion in accordance with Section 2.1(d). participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, shall (together with the Company, Company and the Other Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If If, between September 30, 1999 and July 1, 2002 the Company receives a written request signed by one or more registered holders of not less than 50% of all of the Subject Securities stating that one or more holders ("Demand Holder" or "Demand Holders") proposes to sell or distribute publicly at least 50% of all of the Subject Securities, the Company shall receive from Initiating Holdersuse its reasonable best efforts to file, at any time or times after and to cause to become effective, a registration statement under the earlier of Securities Act covering the Subject Securities specified in the written request. However, the Company shall not be required to effect the registration if (i) three (3) years after the date hereof or Company has filed previously a registration statement under the Securities Act which became effective within the 12 months prior to receipt of the written request and which was kept current for the period referred to in Section 6; (ii) six the Company could be required to undergo a special interim audit in order to comply with the request (6) months after unless the effective date Demand Holders execute an undertaking, reasonably satisfactory to the Company, to pay all fees and expenses of the registration statement special interim audit); (iii) the Demand Holders could sell publicly under Rule 144 promulgated under the Securities Act the number of securities the holders propose to have registered; or (iv) in the opinion of counsel for the Initial Public Offering, a written request that the Company effect any registration with respect to all or a part of the Registrable SecuritiesCompany, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to securities may be publicly sold without registration under the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from Act or the Company is given, and use commercially reasonable efforts to effect then prohibited under the Securities Act from registering such registrationshares.
(b) The Company shall be entitled to postpone, for a period of time not to exceed 120 days from the date it receives the written request pursuant to Section 5(a), the filing of any registration statement otherwise required to be obligated to effectprepared and filed by it, if, at the time it receives the request, the Company determines, in its sole discretion, that the registration and offering could interfere with any financing, acquisition, corporate reorganization, or other material transaction involving the Company or any of its affiliates and gives any Demand Holder requesting registration written notice of its determination. If the Company shall postpone the filing of a registration statement, the Demand Holder, within 60 days after receipt of the notice of postponement, shall notify in writing the Treasurer of the Company if such holder has determined to take any action to effectwithdraw such request for registration. In the event the Demand Holder does not withdraw such request for registration, any such the Company shall file a registration pursuant to this Section 1.3:
statement by the later of (i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as date to which the Holders have not elected Company determined to bear postpone the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
filing of the registration statement or (ii) during 90 days from the period starting with latest date on which a Demand Holder advises the date sixty (60) days prior to the Company’s good faith estimate Treasurer of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated Company that such holder has determined not to withdraw his request for registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such The registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders maySection 5 is a one-time right that, subject to the provisions of this Section 1.14 hereof5, include Other Shares held by Other Stockholders may only be exercised once, and may include securities only be exercised by the registered holder or holders of not less than 50% of all of the Company being sold for the account of the CompanySubject Securities.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If Subject to the terms and conditions set forth in this Agreement, if at any time after the date of this Agreement the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that from any Holder or Holders to file a registration statement under the Company effect any Securities Act covering the resale registration with respect to all or a part of the Registrable Securities, the Securities having an anticipated aggregate proceeds offering price of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed at least $30,000,0002,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, will promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, Holders and include in any event within sixty (60) days of receipt such registration all Registrable Securities of such request, file a registration statement covering Holders with respect to which the Company receives written requests for inclusion therein within ten days after the date of such notice. Such written requests shall express the present intention of the Holders to offer or cause the offering of such Registrable Securities for distribution and shall state the intended method of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationdistribution thereof.
(b) The In the event the Company receives a request pursuant to Section 2(a), the Company shall not use its reasonable best efforts to cause to be obligated filed and declared effective as soon as reasonably practicable a registration statement, on Form S-3 or such other appropriate registration form under the Securities Act as the Company in its discretion shall determine, providing for the sale of the Registrable Securities requested to effectbe included by each of the Holders that deliver notice to the Company in accordance with Section 2(a). The Company's obligation to use its reasonable best efforts to cause Registrable Securities to be registered in accordance with Section 2(a) is subject to each of the following limitations, or to take any action to effect, any such registration pursuant to this Section 1.3conditions and qualifications:
(i) after If the Company has effected two (2shall have filed a registration statement by reason of a request pursuant to Section 2(a) such registrations that shall have become effective and remained effective for the period specified in Section 5(a)(ii), then the Company shall not be required to effect any additional registration requested pursuant to this Section 1.3 2 for a period of 6 months from the date of the termination of the effectiveness of such prior registration statement.
(counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by ii) Except during the Holders as 90 day period following the date of this Agreement, the Company shall not be required to which the Holders have not elected to bear the Registration Expenses effect any registration requested pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii2(a) during the period starting with the date sixty thirty (6030) days prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registrationregistration subject to Section 3 hereof, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or.
(iii) if the Initiating Holders propose The Company shall not be required to dispose of Registrable Securities which may be registered on Form S-3 effect any registration requested pursuant to a request made Section 2(a) after the Company has effected two registrations pursuant to this Section 2, and such registrations have been declared effective under the Securities Act and remained effective for the period specified in Section 1.5 hereof5(a)(ii).
(civ) If Except during the 90 day period following the date of this Agreement, the Company shall furnish may postpone for a period of 90 days the filing or the effectiveness of a registration requested pursuant to Section 2(a) if (A) such registration is demanded within 90 days following the Initiating Holders effective date of a certificate signed registration statement filed by the President of the Company stating that in the good faith judgment of or (B) the Board of Directors of the Company it would be materially detrimental to determines in good faith that such registration might have an adverse effect on any plan or proposal by the Company for or any of its subsidiaries with respect to any financing, acquisition, recapitalization, reorganization, or other material transaction or that the Company is in possession of material non-public information and disclosure of such registration statement to be filed in the near future and that it information is therefore not in the best interests of the Company; provided, however, that as soon as the conditions permitting such delay no longer exist, the Company shall give notice of that fact to defer the filing Initiating Holders and shall proceed with the registration unless the Initiating Holders shall have elected, at any time prior to the close of business on the tenth business day after the Company has so notified the Initiating Holders, to withdraw their request for registration, and such withdrawn request shall not constitute a request hereunder.
(v) The Company shall not be required to effect any registration pursuant to Section 2(a) unless such registration statementrelates to Registrable Securities having an anticipated aggregate offering price of at least $2,000,000. In addition, the Company shall not be required to file a registration statement pursuant to this Section 2 with respect to Registrable Securities that may be sold by the Holder thereof in a single transaction pursuant to Rule 144 (or any successor or similar provisions) under the Securities Act.
(c) The Company may, with the consent of the participating Holders, include Shares proposed to be sold pursuant to a registration pursuant to Section 2(a) in a firm commitment underwriting. The Company shall have the right to defer such filing for select any nationally recognized investment banking firm(s) to underwrite the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month periodoffering.
(d) The Company and, at the Company's election, any other holders of Common Stock with registration statement filed rights, may include in any registration requested pursuant to Section 2(a) any shares of Common Stock that it or they shall determine so to include (the request "Additional Registrable Securities") and the consent of the Initiating Holders mayshall not be required with respect thereto; provided, subject to however, that, if, in the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities opinion of the Company being sold for managing underwriter(s) of such offering, the account inclusion in such registration statement of all Additional Registrable Securities would materially interfere with the successful marketing of the CompanyHolders' Registrable Securities included in such registration statement, then the number of the Additional Registrable Securities shall be reduced to such number, if any, that, in the opinion of such managing underwriter(s), can be included in such underwriting without such interference with the successful marketing of the Holders' Registrable Securities.
(e) If the Initiating Holders intend As a condition to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the each Holder's right of any Holder to include such Holder’s Registrable Securities Shares in such a registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f)2 for an underwritten public offering, such Holder shall, if requested by the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities the managing underwriter(s) in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, connection with such securities registration and distribution, (A) agree to be allocated among sell the Shares on the basis provided in any underwriting arrangements entered into in connection therewith and (B) complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements, and other documents that are customary in similar transactions and required under the terms of such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofunderwriting arrangements.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, Holders holding in the aggregate more than fifty percent (50%) of the then-outstanding shares of Registrable Securities at any time or times after the not earlier of than eighteen (i) three (3) years after the date hereof or (ii) six (618) months after the effective date of the registration statement for the Initial Public OfferingClosing, a written request that the Company effect any registration with respect to all or a part of in which the Registrable Securities, the anticipated aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related offering price to the issuance) public would exceed Ten Million Dollars ($30,000,00010,000,000)), the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablesubject to Section 1.2(b) use its best efforts to effect such registration (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and in any event within sixty (60appropriate compliance with the Securities Act) days as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) mailed or delivered. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.31.2:
(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, qualification, or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) after the Company has effected initiated two (2) such registrations pursuant to this Section 1.3 1.2
(a) (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear all the Registration Expenses pursuant relating to Section 1.6 hereof and would, absent such election, have been required to bear such expensesregistration except as provided below);
(iiC) during the period starting with the date sixty thirty (6030) days prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, ; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iiiD) if the Initiating Holders propose to dispose of shares of Registrable Securities which may be immediately registered on Form S-3 pursuant to a request made under Section 1.5 1.4 hereof. In the event that a withdrawal of a registration by the Holders is based upon material adverse information relating to the Company that is different from the information known to the Initiating Holders requesting registration at the time of their request for registration under this Section 1.2 and the holders of a majority of the Registrable Securities held by the Initiating Holders with respect to such registration elect not to proceed with such registration, such registration shall not be treated as a counted registration for purposes of this Section 1.2 hereof.
(cb) If Subject to the foregoing clauses (A) through (D) of Section 1.2(a)(ii), the Company shall use commercially reasonable best efforts to effect such a registration of the Registrable Securities so requested as soon as practicable but in any event within one hundred twenty (120) days after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the Board of Directors of the Company, such registration would be materially detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer t he filing of such registration statement at such time, and (ii) the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Company, it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which filing, upon furnishing such disclosure would be materially detrimentalcertificate, provided that the Company may not defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The ; provided further, that the Company may shall not defer its obligation in this manner more than once in any rolling twelve (12) month period.
(d) . The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 Sections 1.2(d) and 1.12 hereof, include Other Shares held by Other Stockholders other securities of the Company, with respect to which registration rights have been granted and may include securities of the Company being sold for the account of the Company.
(ec) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 1.2(a) 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 with respect to such participation and inclusion) to the extent provided herein. All Except as otherwise provided herein, a Holder may elect to include in such underwriting all or a part of the Registrable Securities he holds.
(d) If the Company shall request inclusion in any registration pursuant to Section 1.2 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 1.2, then the Company shall provide the Initiating Holders with written notice of such participation and the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 1. The Company shall (together with all Holders and other persons proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting.
(f) underwriting by the Initiating Holders, to which the Company has reasonably consented. Notwithstanding any other provision of this Section 1.31.2, if the representative of the underwriters underwriter advises the Initiating Holders in writing Company that marketing factors require a limitation on of the number of securities to be underwrittenunderwritten (including Registrable Securities), then the Initiating Holders Company shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the securities of the Company held by individuals or entities other than the selling Holders shall be excluded from such underwriting to the extent so required by such limitation. If, after the exclusion of such shares and securities being sold for the Company's own account, further reductions are still required, the number of securities to shares that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereofto t he selling Holders on a pro rata basis based on the number of Registrable Securities held by all such Holders. If a person who has requested inclusion in such registration as provided herein above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the . The securities so excluded shall also be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Synchronoss Technologies Inc)
Requested Registration. (a) If at any time on or after the first anniversary of the date hereof, the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request from the Holders of a majority of the then outstanding Registrable Securities (the “Requesting Holders”) that the Company effect any registration a Registration with respect to all or a part of the Registrable Securities, Securities not included or requested to be included on the aggregate proceeds of which Shelf Registration Statement (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000a “Demand Registration”), the Company shallwill:
(i) within ten (10) days of receipt thereof, Business Days give written notice of the proposed registration Demand Registration to all other Holders; and
(ii) as soon as practicable, use commercially reasonable efforts to effect such Demand Registration on Form S-3 (or any successor form thereto) or another appropriate form for such purpose if the Company is not then eligible to use Form S-3 to permit or facilitate the sale and in any event within sixty (60) days distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Holder joining in such request as are specified in a written request received by the Company within ten twenty (1020) days Business Days after such written notice from the Company is given, and use commercially reasonable efforts given under Section 3(a)(i) above; provided that the Company shall only be obligated to effect such registration.
three (b3) The Demand Registrations pursuant to this Section 3 and the Company shall not be obligated to effect, or to take any action to effect, :
(A) any such registration Demand Registration pursuant to this Section 1.3:3, if the Registrable Securities requested by all Holders to be registered pursuant to any such request have an anticipated aggregate public offering price (after deduction of any Selling Expenses) of less than $500,000; and
(iB) after the Company has effected two (2) any such registrations Demand Registration pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate 3 of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of any Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for if such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) If the Initiating Holders intend to distribute the Registrable Securities are then covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwritinganother effective Registration Statement.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Ruths Hospitality Group, Inc.)
Requested Registration. (a) If The Initiating Holders shall be entitled to submit pursuant to this Section 2 a written request for registration. Upon receipt by the Company shall receive from the Initiating Holders, at any time or times after the earlier of (i) three (3) years after six-month anniversary and prior to the date hereof or (ii) six (6) months after the effective date second annual anniversary of the registration statement for Closing Date of the Initial Public OfferingAgreement, of a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) give written notice of the proposed registration, qualification or compliance to all other Holders within ten (10) days of after receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) use its best reasonable efforts to effect an S-3 registration (as soon well as practicablequalification under the applicable blue sky or other state securities laws, and in appropriate compliance with exemptive regulations issued under the Act and any event within sixty (60other governmental requirements or regulations) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such the Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten thirty (1030) days after such written notice from the Company is given; provided, and use commercially reasonable efforts to effect such registration.
(b) The that the Company shall not be obligated to effect, or to take any action to effecteffect any such registration, qualification or compliance pursuant to this Section 2:
(A) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process (unless the Company is already subject to service of process under said state's securities laws), to register as a dealer, or to cause any officer or employee of the Company to register as a salesman in effecting such registration, qualification or compliance;
(B) After the Company has effected one (1) such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cC) If the Company shall furnish to the Initiating such Holders a certificate signed by the President Chief Executive Officer of the Company stating that in the good faith judgment 2 34 of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its stockholders for such a registration statement to be filed in the near future and that it is therefore in future, then the Company's obligation to use its best interests efforts to register, qualify or comply under this Section 2 shall be deferred for a period not to exceed 180 days from the date of receipt of written request from the Company to defer the filing of such registration statementInitiating Holders; provided, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimentalhowever, provided that the Company may not defer such filing for a period of utilize this right more than once in any twelve-month period; or
(D) Within one hundred twenty (120) days after receipt of the request effective date of any other registration effected by the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The Company, or prior to the effective date of such registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and if the Company shall include such information in the have theretofore or thereafter given written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable such registration statement to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwrittenand shall have thereafter pursued the preparation, filing and the number effectiveness of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, statement with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofdiligence.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Photocomm Inc)
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration (other than a registration on Form S-3 or any related form of Registration Statement) with respect to at least twenty percent (20%) of all or a part of the Registrable Securities, Securities the aggregate proceeds of which outstanding (after deduction for underwriter’s discounts and expenses related to or any lesser percentage if the issuance) anticipated gross offering price would exceed $30,000,0005,000,000), the Company shallwill:
(ia) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(iib) as soon as practicable, use its diligent best efforts to effect such registration (including, without limitation, the execution of an undertaking to file posteffective amendments, appropriate qualification under applicable blue sky or other state securities laws and in any event within sixty (60appropriate compliance with applicable regulations issued under the Securities Act) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company given within ten fifteen (1015) days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company; provided that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.32.2:
(i) after 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 by the Securities Act;
(ii) Prior to the earlier of (A) January 1, 1993 or (B) one year following the effective date of the Company's first registered underwritten offering to the general public of its securities for its own account;
(iii) Within four (4) months immediately following the effective date of any registration statement pertaining to an underwritten public offering of securities of the Company for its own account (other than a registration relating solely to a Commission Rule 145 transaction or a registration relating solely to employee benefit plans or a registration on any registration form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of Registrable Securities); and
(iv) After the Company has effected an aggregate of two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only 2.2 and such registrations which have been declared or ordered effective effective. Subject to the foregoing clauses (i) through (iv) and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof 2.2(d), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request of the Initiating Holders, and would, absent such election, have been required to bear such expenses);
in any event within one hundred twenty (ii) during the period starting with the date sixty (60120) days prior to the Company’s good faith estimate of the date of filing ofsuch request; provided, and ending on a date one hundred eighty (180) days after the effective date ofhowever, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the such Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Company, it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.be
Appears in 1 contract
Sources: Stock Restriction, Information Rights and Registration Rights Agreement (PLX Technology Inc)
Requested Registration. (a) If In case the Company shall receive from a Holder or Holders which hold in the aggregate not less than fifty percent (50%) of the Registrable Securities ("Initiating Holders, at any time or times after the earlier of (i") three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any the registration with respect to all or a part of at least 20% of the outstanding Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000Securities then held by it or them, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) use its best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other applicable governmental requirements or regulations) as soon may be so requested and as practicable, would permit or facilitate the sale and in any event within sixty (60) days distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after receipt of such written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.310.2:
(iA) after In any particular jurisdiction in which the Company has effected two (2) would be required to execute a general consent to service of process in effecting such registrations pursuant registration, qualification or compliance unless the Company is already subject to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as Securities Act;
(B) During the period ending on the date three (3) months immediately following the effective date of any registration statement pertaining to which securities of the Holders have not elected Company (other than a registration of securities in a transaction covered by Rule 145 under the Securities Act (a "Rule 145 Transaction") or a registration of securities on Form S-8 (or any successor form) relating solely to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expensesan employee benefit plan);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cC) If the Company shall furnish to the Initiating Holders such Holders, within thirty (30) days of any written request made pursuant to this Section 10.2(a), a certificate certificate, signed by the President of the Company, stating that the Company intends to file, within ninety (90) days of the date of such certificate, a registration statement for the Company's securities; or
(D) If the Company shall furnish to such Holders a certificate, signed by the President of the Company, stating that in the good faith judgment of the Board of Directors the filing of a registration statement would require the Company it disclosure of material information regarding a possible financing, business combination or other material transaction, which disclosure the Board has determined in its good faith judgment would be materially detrimental to the Company for such registration statement Company, then the Company's obligation to use its best efforts to register, qualify or comply under this Section 10.2 shall be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing deferred for a single period of more than not to exceed one hundred twenty (120) days from the date of its receipt of a written request from the Initiating Holders. Subject to the foregoing clauses (A) through (D), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation , and in this manner more no event, later than once in any twelve ninety (1290) month perioddays thereafter.
(db) The In the event that a registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of this Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold 10.2 is for the account of the Company.
(e) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made the notice given pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company10.2(a)(i). In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to this Section 10.2 shall be conditioned upon such Holder’s 's participation in such the underwriting arrangements required by this Section 10.2 and the inclusion of such Holder’s 's Registrable Securities in the underwriting underwriting, to the extent provided herein. All in this Article X. The Company (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting.
underwriting by a majority in interest of the Initiating Holders (f) which managing underwriter shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.310.2, if the representative of the underwriters managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, the Initiating Holders Company shall so advise all holders Holders of Registrable Securities and the number of shares of Registrable Securities that would otherwise be underwritten, and the number of securities to may be included in the registration and underwriting shall be allocated among all Holders in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion, as provided herein does not agree nearly as practicable, to the terms respective amounts of any such underwriting, such person shall be excluded therefrom Registrable Securities held by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to all Holders who have requested that Registrable Securities be included in such registration was previously reduced as a result at the time of filing the registration statement; provided, however, that shares sought to be included by the Company or any other stockholder in such underwritten offering shall be excluded from such registration statement before any Registrable Securities held by the Initiating Holders shall be excluded. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing factors pursuant to this Section 1.3(f)limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to underwriters may round the number of securities so withdrawnshares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of the underwriting, with such securities Holder may elect to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofwithdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration with respect to all or a part at least 51% of the outstanding Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablepracticable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments and in any event other governmental requirements) all Registrable Securities that the Holders request to be registered within sixty thirty (6030) days of after receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received notice by the Company within ten (10) days after such written notice from Company; provided that the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or file a registration statement pursuant to take this Section 4:
(A) prior to 120 days after the closing of the Private Placement;
(B) in any action particular state in which the Company would be required to effect, any execute a general consent to service of process in effecting such registration; or
(C) after the Company has effected one such registration pursuant to this Section 1.3:
(i) after the Company 4 and such registration has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior effective. Subject to the Company’s good faith estimate of foregoing clauses (A) through (C), the date of filing ofCompany shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, and ending on a date one hundred eighty but in any event within ninety (18090) days after receipt of the effective date of, a Company-initiated registration, provided that request or requests of the Company is actively employing in good faith all commercially Initiating Holders and shall use reasonable best efforts to cause have such registration statement to become effective; or
(iii) if promptly declared effective by the Initiating Holders propose to dispose of Commission whether or not all Registrable Securities which may requested to be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If can be included; provided, however, that if the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company and its shareholders for such registration statement to be filed in the near future within such ninety (90) day period and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the right expiration of the initial ninety-day (90-day) period within which to defer file such filing for the period registration statement; provided, that during which such disclosure would be materially detrimental, provided that time the Company may not defer such filing file a registration statement for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer securities to be issued and sold for its obligation in this manner more than once in any twelve (12) month periodown account.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(eb) 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 Section 1.3(a) hereof and request. In such event or if any underwriting is required by subsection 4(c), the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 4(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 4 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 The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) . Notwithstanding any other provision provisions of this Section 1.34, if the representative of the underwriters managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, the Initiating Holders Company shall so advise all holders of Registrable Securities that would otherwise be underwrittenHolders, and the number of securities to shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among Holders thereof in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion, as provided herein does not agree nearly as practicable, to the terms respective amounts of any Registrable Securities held by such underwritingHolders; provided, such person shall be excluded therefrom by written notice from the Companyhowever, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of that securities to be included in such registration was previously reduced as statement to be offered by the Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. If, by the withdrawal of such Registrable Securities, a result greater number of marketing factors pursuant Registrable Securities held by other Holders may be included in such registration (up to this Section 1.3(fthe limit imposed by the underwriters), the Company shall offer to all Holders or Other Stockholders holders who have retained rights to include securities included Registrable Securities in the registration the right to include additional securities Registrable Securities in the registration same proportion used in an aggregate amount equal to determining the number limitation as set forth above. Any Registrable Securities which are excluded from the underwriting by reason of securities so withdrawn, with the underwriter's marketing limitation or withdrawn from such securities to underwriting shall be allocated among withdrawn from such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofregistration.
Appears in 1 contract
Sources: Registration Rights Agreement (Caspian Services Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier to occur of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public OfferingDecember 31, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts 2002 and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date ofof the Company's initial public offering, a Company-initiated registration, provided written request from the Holders of forty percent (40%) of the Registrable Securities then outstanding that the Company is actively employing file a registration statement under the Securities Act covering Registrable Securities then outstanding, then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and shall, subject to the limitations of this Section 3.2, effect as soon as practicable, and in good faith any event within ninety (90) days of the receipt of such request, the registration under the Securities Act of all commercially reasonable efforts Registrable Securities which the Holders requested to cause be registered within twenty (20) days of the giving of such notice by the Company in accordance with Section 5.6 hereof; provided, however, that the Registrable Securities requested by all Holders to be registered pursuant to such request must have an anticipated aggregate public offering price (before any underwriting discounts and commissions) of not less than $10,000,000.
(b) If the Holders initiating the registration request hereunder (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 3.2 and the Company shall include such information in the written notice referred to in Subsection 3.2(a) hereof. In such event, the right of any Holder to include its Registrable Securities in such registration statement to become effective; or
shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (iii) if unless otherwise mutually agreed by a majority in interest of the Initiating Holders propose and such Holder) to dispose the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Subsection 3.4(e) hereof) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that it requires a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be registered on Form S-3 pursuant included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to a request made under Section 1.5 hereofthe amount of Registrable Securities of the Company owned by each Holder.
(c) If The Company is obligated to effect only two (2) such registrations pursuant to this Section 3.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to the Initiating Holders requesting a registration pursuant to this Section 3.2, a certificate signed by the President president of the Company stating that in the good faith judgment of the Board board of Directors 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 in the near future and that it is therefore in the best interests of the Company reasonable to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The ; provided, however, that the Company may not defer its obligation in utilize this manner right more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) If at the Initiating Holders intend time of the request to distribute the register Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as gives notice within thirty (30) days of such request that it intends to initiate a part firm underwritten registered initial public offering within forty-five (45) days of their request made the time of the request, in which offering the Holders may include Registrable Securities pursuant to Section 1.3(a) hereof and Sections 3.2 or 3.3 hereof, then the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with defer such securities to be allocated among filing provided that it makes such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereoffiling within such forty-five (45) day period.
Appears in 1 contract
Sources: Rights Agreement (Formfactor Inc)
Requested Registration. (a) If Subject to the conditions set forth in this Section 2.1, if the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Offering a written request from holders of Registrable Securities (for purposes of this Section 2.1, “Holders”) collectively holding at least fifty percent (50%) or more of the Registrable Securities then outstanding (for purposes of this Section 2.1, the “Initiating Holders”) that the Company effect any file a registration statement under the Securities Act covering the registration of Registrable Securities with respect to all or a part an anticipated aggregate offering price of the Registrable Securitiesat least $5,000,000, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, then the Company shall:
, within twenty (i) within ten (1020) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; holders and
(ii) , subject to the limitations of this Section 2.1, use its reasonable best efforts to effect, as soon as practicable, and in any event within sixty (60) days the registration under the Securities Act of receipt of such request, file a registration statement covering such all Registrable Securities of that the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received by the Company within ten twenty (1020) days after such written of the mailing of the Company’s notice from the Company is given, and use commercially reasonable efforts pursuant to effect such registrationthis Section 2.1(a).
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.1, and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company2.1(a). In such event, event the right of any Holder to include such Holder’s 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 securities through such underwriting shall, together with the Company, shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
underwriting by those Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders (f) which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 1.32.1, if the representative of the underwriters underwriter advises the Initiating Holders in writing Company that marketing factors require a limitation on the number of securities to be underwrittenunderwritten (including Registrable Securities), then the Initiating Holders Company shall so advise all holders Holders of Registrable Securities that would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to 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. 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 2.1:
(a) in accordance with Section 1.14 hereof. If any particular jurisdiction in which the Company would be required to execute a person who has requested inclusion general consent to service of process in effecting such registration, unless the Company is already subject to service in such registration jurisdiction and except as provided herein does not agree may be required under the Act; or
(b) if the Company has previously effected registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective; or
(c) during the period starting with the date sixty (60) days prior to the terms Company’s good faith estimate of any 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 below, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such underwriting, such person registration statement to become effective; or
(d) if the Company shall be excluded therefrom furnish to Holders requesting a registration statement pursuant to this Section 2.1 a certificate signed by written notice from 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 underwriter or 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, and the securities so excluded provided, that such right shall be withdrawn from exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such registration. If securities are so withdrawn from ninety (90) day period (other than a registration relating solely to the registration and if the number 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 such a registration was previously reduced as statement covering the sale of the Registrable Securities, or a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to which the number only Common Stock being registered is Common Stock issuable upon conversion of debt securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofthat are also being registered).
Appears in 1 contract
Sources: Investor Rights Agreement (Silvergate Capital Corp)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (A) (i) three the Transfer Restriction Period shall have expired pursuant to clause (3w) years after or (y) of the date hereof or definition thereof, (ii) six Purchaser seeks to make an Excess Transfer and (6iii) months after the effective date Company and/or its assignee(s) do not exercise the right of first offer specified in Section 5.3 above (including in the event Purchaser does not accept the Offer to Purchaser made pursuant to Section 5.3(b) above) or (B) the Transfer Restriction Period shall have expired pursuant to clause (x) or (z) of the registration statement for definition thereof, Purchaser shall have the Initial Public Offering, right to make a written request that the Company effect any a registration under and in accordance with the provisions of the Securities Act with respect to all or a part of the Registrable SecuritiesShares (such request shall state the number of Shares to be disposed of and the intended methods of disposition of such shares by Purchaser) (a “Registration Request”). Purchaser shall furnish to the Company such information regarding Purchaser and the distribution proposed by Purchaser as the Company may reasonably request in writing and as shall be reasonably required in connection with any registration, qualification, or compliance referred to in this Article VI. As used in this Article VI, the aggregate proceeds term “Shares” shall include the Shares, any additional shares of which (Common Stock issued by the Company that are acquired by Purchaser after deduction for underwriter’s discounts the date of this Agreement without violation of this Agreement, and expenses related all securities issued directly or indirectly with respect to the issuanceShares. Purchaser shall be entitled to no more than two Registration Requests pursuant to this Section 6.1 from the Company. No Registration Request will count for the purposes of the limitations in the preceding sentence if: (A) exceed $30,000,000Purchaser withdraws the Registration Request prior to (x) in the case of a Registration Request in which a roadshow or significant marketing activity involving the management of the Company is contemplated, the earlier of (1) the commencement of any such roadshow or significant marketing activities or (2) the effectiveness of any new registration statement filed by the Company in response to such request, or (y) in cases other than the immediately preceding clause (x), the effectiveness of any new registration statement filed by the Company in response to such request, if in either case (x) or (y) Purchaser reimburses the Company for any reasonable out-of-pocket expenses otherwise payable by the Company incurred in connection therewith (it being understood that the Company thereafter may abandon or withdraw such registration); (B) the registration statement relating to such request is not declared effective by the SEC within 60 days of the date such registration statement is first filed with the SEC; (C) prior to the sale of at least two-thirds of the Shares included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order of the SEC or other governmental authority or court not related solely to acts or omissions by Purchaser; or (D) the conditions to closing specified in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by Purchaser).
(b) Upon receipt of the Registration Request, the Company shall:
(i) within ten (10) days of receipt thereofwill, give written notice of the proposed registration to all other Holders; and
(ii) as soon promptly as practicable, and practicable thereafter but in any event within sixty (60) 45 days of receipt of such requestthe Registration Request, file a (unless an applicable shelf registration statement covering has already been filed) and use its commercially reasonable efforts to effect such Registrable registration on an appropriate and available form of registration statement (including, if available, an automatic registration statement for a “well-known seasoned issuer” as defined under the Securities Act, and including, without limitation, to cause such registration statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof, and filing post-effective amendments, appropriate qualifications under applicable “Blue Sky” or other state securities laws, and appropriate compliance with the Securities Act) to permit or facilitate the sale and distribution of the Initiating Holders all or such portion of such Shares as are specified in such request, together with the Registrable Securities of . No securities other Holders joining in such request as are specified in a written request received than Shares held by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company Purchaser shall not be obligated to effect, or to take any action to effect, included under any such registration pursuant statement without the written consent of Purchaser (not to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared be unreasonably withheld or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expensesdelayed);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, ; provided that in no event shall any such additional securities take priority over the Company is actively employing sale of Shares held by Purchaser in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereofany offering thereunder.
(c) If the Company shall furnish provides notice to the Initiating Holders Purchaser in a certificate signed by the President Chief Executive Officer or Chief Financial Officer of the Company stating that (i) in the good faith judgment of the Board of Directors of the Company, the filing of a registration statement covering the Shares at such time would be materially detrimental to the Company, and the reason for such judgment (which shall not be stated in such notice) is because such filing (A) would materially interfere with a bona fide and imminent material financing of the Company it or imminent material transaction under consideration by the Company or (B) would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would be materially detrimental to the Company for such registration statement to be filed in and (ii) the near future and Board of Directors of the Company concluded, as a result, that it is therefore in the best interests of the Company to defer the filing (or, in the case of clause (B), suspend the use) of the registration statement specified in Section 6.1(b) above at such registration statementtime, then the Company shall have the right to defer such filing (and, in the case of clause (B), suspend the use) of the registration statement for a reasonable period not to exceed (x) 60 days in any case and (y) 105 days in the period during which such disclosure would be materially detrimental, provided that aggregate in any twelve-month period. If the Company may so postpones effecting a registration (or suspends the ability to use a shelf registration), Purchaser shall be entitled to withdraw its Registration Request, in which case such Registration Request shall not defer such filing count for a period of more than one hundred twenty (120) days after receipt purposes of the request of the Initiating Holders. The Company may not defer its obligation limitation set forth in this manner more than once in any twelve (12) month periodSection 6.1(a).
(d) The registration statement filed pursuant In addition to the foregoing, in the event Purchaser shall in good faith determine, based on the advice of reputable U.S. securities legal counsel (and after consultation with the Company and its reputable U.S. securities legal counsel), that Purchaser might be deemed an “affiliate” of the Company under the U.S. federal securities laws as a result of an increase in its beneficial ownership percentage of the Company (except as a result of its purchase or acquisition of shares of Common Stock other than from the Company), upon the request of Purchaser, the Initiating Holders mayCompany will, subject as promptly as practicable thereafter but in any event within 45 days of receipt of such request, file and use its commercially reasonable efforts to qualify for registration on a Form S-3 registration statement (including, if available, an automatic registration statement for a “well-known seasoned issuer” as defined under the provisions of Section 1.14 hereofSecurities Act) or any comparable or successor form (“Short-Form Registration”), include Other Shares held by Other Stockholders which shall constitute a “shelf” registration statement providing for the registration of, and may include securities the sale on a continuous or delayed basis of, the Shares, pursuant to Rule 415 under the Securities Act, to permit the distribution of the Company being sold for Shares in accordance with the account methods of the Company.
(e) If the Initiating Holders intend to distribute the Registrable Securities covered distribution elected by their request Purchaser, including by means of an underwritingunderwritten offering or block sale that could be effected pursuant to a Registration Request. Upon filing a Short-Form Registration, they shall so advise the Company as a part of their request made pursuant shall use its commercially reasonable efforts to Section 1.3(a) hereof keep such Short-Form Registration effective with the SEC at all times and any Short-Form Registration shall be re-filed upon its expiration, and the Company shall include cooperate in any shelf take-down by amending or supplementing the prospectus related to such information in Short-Form Registration as may be reasonably requested by Purchaser or as otherwise required, until the written notice referred disposition of all of Purchaser’s Shares is complete or the date that is 90 days after the date Purchaser ceases to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority deemed an “affiliate” of the Registrable Securities held Company (as determined in good faith by all Initiating Holders Purchaser, based on the advice of reputable U.S. securities legal counsel (and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together after consultation with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwritingCompany and its reputable U.S. securities legal counsel)).
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If the Company has not filed a registration statement with respect to any Registrable Securities within ninety (90) days after the date hereof, then subject to the conditions of Subsection 1.3(b) hereof and in lieu of the registration rights granted to the Investor pursuant to Subsection 1.2 hereof, the Investor may make one (1) demand (and one (1) demand only) on the Company to register all of the Registrable Securities of such Investor (a “Demand Registration”).
(b) In the event the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Investor a written request that the Company effect any registration a Demand Registration with respect to all or a part of the Registrable SecuritiesSecurities held by the Investor, other than a registration pursuant to Rule 415 under Regulation C promulgated under the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000Securities Act, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other HoldersOther Stockholders; and
(ii) as soon as practicable, use its diligent best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable “blue sky” or other state securities laws, and in any event within sixty (60appropriate compliance with applicable regulations issued under the Securities Act) days of receipt as may be so requested and as would permit or facilitate the sale and distribution of such request, file a registration statement covering portion of such Registrable Securities of the Initiating Holders as are is specified in such request, together with such portion of the Registrable Securities of other Holders any Other Stockholder joining in such request as are is specified in a written request received by the Company within ten (10) days given after such receipt of written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration pursuant to this Section Subsection 1.3:
(iA) after in any particular jurisdiction in which the Company has effected two (2) would be required to execute a general consent to service of process in effecting such registrations pursuant registration, qualification or compliance unless the Company is already subject to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)Securities Act;
(iiB) during the period following a Public Offering that is contemplated by Subsection 1.10 hereof; or
(C) during the period starting with the date that is sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registrationunderwritten registration for an all-cash offer price, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
. In the event the Company is not obligated to effect any requested registration by virtue of the foregoing clauses (iiiA) if through (C), such request shall not be deemed to be a demand for registration for purposes of Subsection 1.3(a) hereof. Subject to the Initiating Holders propose to dispose of foregoing clauses (A) through (C), the Company shall file a registration statement covering the Registrable Securities which may so requested to be registered on Form S-3 pursuant to a as soon as practicable after receipt of the request made under Section 1.5 hereof.
(c) If of the Investor; provided, however, that if the Company shall furnish to the Initiating Holders Investor a certificate signed by the President Chairman of the Board of the Company stating that in the good good-faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company and its stockholders for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, (except as provided that the Company may not defer such filing in clause (C) above) for a period of not more than one hundred twenty eighty (120180) days after receipt of the request of the Initiating HoldersInvestor. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders Investor may, subject to the provisions of Section 1.14 hereofSubsection 1.3(c) below, include Other Shares held securities offered by Other Stockholders and may include the Company for its own account and/or other securities of the Company being sold for the account of the Companythat are held by Other Stockholders.
(ec) If the Initiating Holders intend Investor intends to distribute the Registrable Securities covered by their his request by means of an underwriting, they he shall so advise the Company as a part of their his request made pursuant to Section Subsection 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(aSubsection 1.3(b)(i) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder Other Stockholder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such HolderOther Stockholder’s participation in such underwriting and the inclusion of such HolderOther Stockholder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by the Investor and such Other Stockholder) to the extent provided herein. All Holders If the Company shall request inclusion in any registration pursuant to this Subsection 1.3 of securities being sold for its own account, or if Other Stockholders shall request inclusion in any registration pursuant hereto, then, subject to the last sentence of this Subsection 1.3(c) with respect to the Company’s request, the Investor shall, on behalf of all Other Stockholders, offer to include such securities in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 1. The Company shall (together with the Investor and the Other Stockholders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form and containing customary terms reasonably acceptable to the Investor, with the representative of the underwriter or underwriters selected for such underwriting.
underwriting by the Company and reasonably acceptable to the Investor; provided, however, that if the Company has not selected an underwriter reasonably acceptable to the Investor within thirty (f30) days after the Company’s receipt of the request for registration from the Investor, then the Investor may select an underwriter reasonably acceptable to the Company in connection with such registration. Notwithstanding any other provision of this Section Subsection 1.3, if the underwriter representative of the underwriters advises the Initiating Holders Investor in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders securities of the Company held by Other Stockholders shall first be excluded from such registration to the extent so required by such limitation. The Company shall advise all holders of Registrable Securities that would otherwise be underwritten, and securities requesting registration as to the number of shares of securities to that may be included in the registration and underwriting shall be as allocated in accordance with Section 1.14 hereofthe foregoing manner. If a person any Other Stockholder who has requested inclusion in such registration as provided herein does not agree to above disapproves of the terms of any such the underwriting, then such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the underwriter or the Initiating Holders, and the Investor. The securities so excluded withdrawn shall also be withdrawn from such registration. If the underwriter has not limited the number of shares to be underwritten, then the Company may include its securities are for its own account in such registration if the underwriter so withdrawn from the registration agrees and if the number of Registrable Securities and other securities to be of the Other Stockholders that would otherwise have been included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to and underwriting will not be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereoflimited thereby.
Appears in 1 contract
Sources: Registration Rights Agreement (WES Consulting, Inc.)
Requested Registration. (a) If Request for Registration. After the exercise of at least 167,500 Warrants for Common Stock, but in no event prior to March 31, 2007, each of B▇▇▇▇▇▇ and Drawbridge (or their assignees) shall have the right upon written request to the Company shall receive from Initiating Holders(the "Demand Registration"), on at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that least two separate occasions to require the Company to effect any a registration with respect to all or a part of such number of Registrable Securities as the Registrable Securities, the aggregate proceeds Warrantholders may elect. Upon receipt of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000such notice, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holdersholders of Registrable Securities, which written notice shall include the name or names of the underwriter or underwriters to be employed; and
(ii) use its diligent good faith efforts to effect, as soon as practicable, such registration (including, without limitation, the filing of post-effective amendments, appropriate qualification under the applicable blue sky or other state securities laws and in appropriate compliance with the Securities Act and any event within sixty (60other governmental requirements or regulations) days as may be so requested by any holder of receipt of such request, file a registration statement covering such Registrable Securities within five days after written notice is given by the Company and as would permit or facilitate the sale and distribution of the Initiating Holders as are specified in all or such request, together with portion of the Registrable Securities of other Holders joining so requested to be included in such request as are specified in a written request received by registration; provided that the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, effect any such registration pursuant to this Section 1.3:
8.1.1: (ia) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process, to register as a securities broker or dealer or to cause any officer or employee of the Company to register as a salesman in effecting such registration or (b) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which 8.1.1which have been declared or ordered effective effective. Subject to the foregoing, the Company shall prepare and registrations which have been withdrawn by file a registration statement covering the Holders Registrable Securities so requested to be registered as soon as reasonably practicable and in any event within 45 days after such request is received. Notwithstanding the foregoing, the Company shall not be obligated to which the Holders have not elected to bear the Registration Expenses pursuant to effect a registration, qualification or compliance under this Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period 8.1.1 starting with the date sixty (60) 60 days prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) 180 days after following the effective date of, a registration statement pertaining to an underwritten public offering of securities for the account of the Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if effective and such registration statement becomes effective within three months from the Initiating Holders propose to dispose date of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental delivery to the Company for such registration statement of a written request to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from effect such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders qualification or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofcompliance.
Appears in 1 contract
Sources: Warrant Agreement (Dune Energy Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time on or times after September 1, 2000, if the earlier Registrable Securities have not already been registered under the Securities Act, upon written request by the Holders of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date at least 51% of the registration statement for Registrable Securities outstanding at the Initial Public Offeringtime of the request to the Company, a written request that the Company effect any the registration with respect to under the Securities Act of all or a part of the Registrable Securities, the aggregate proceeds of which Securities (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000a "Requested Registration"), the Company shall:
(i) within ten (10) days of receipt thereof, give written notice will use its best efforts to effect the registration under the Securities Act of the proposed registration Registrable Securities which the Company has been so requested to all other Holders; and
(ii) as soon as practicable, and in any event register by the Holders within sixty (60) days of after receipt of such request; provided, file however, that the Company shall not be required to effect the registration of less than 25% of the Vested Warrant Shares. the Company shall not be obligated to effect more than one Requested Registration hereunder. The Company may include in such Requested Registration other securities of the Company for sale, for the Company's account or for the account of any other person, if and to the extent that the managing underwriter determines that the inclusion of such additional shares will not interfere with the orderly sale of the underwritten securities at a registration statement covering price range acceptable to the requesting Holders. Upon receipt of a written request pursuant to this subdivision (a) the Company shall promptly give written notice of such request to all Holders, and all Holders shall be afforded the opportunity to participate in such request. The Company will be obligated to include in the Requested Registration such number of Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders any Holder joining in such request as are specified in a written request by the Holder received by the Company within ten (10) 20 days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after Company. Notwithstanding the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statementforegoing, the Company shall have no obligation to file a Requested Registration if at such time the right Holders are eligible to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) If the Initiating Holders intend to distribute sell the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and Rule 144 under the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwritingAct without volume limitation.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Warrant Agreement (Entrade Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof January 31, 2001, or (ii) six one (61) months year after the effective date of the first registration statement for a public offering of securities of the Initial Public OfferingCompany (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders of at least twenty-five percent (25%) of the Registrable Securities then outstanding that the Company effect any file a registration with respect to all or a part statement under the Act covering the registration of the that number of shares of Registrable SecuritiesSecurities whose anticipated aggregate offering price, the aggregate proceeds net of which (after deduction for underwriter’s underwriting discounts and expenses related to the issuance) exceed commissions, would equal at least $30,000,00010,000,000, then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 2.2(b), effect as soon as practicable, and in any event within sixty (60) 90 days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities which the Holders request to be registered within twenty (20) days of the Initiating Holders as are specified in mailing of such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 5.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by If the Holders as to which initiating the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
registration request hereunder (ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the "Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12") month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereofsubsection 2.2(a). The underwriter or underwriters shall will be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company and shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders. In such event, the right of any Holder to include such Holder’s 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 securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 1.32.2, if the representative of the underwriters underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to shares of Registrable Securities that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwritingamong all Holders thereof, such person shall be excluded therefrom by written notice from the Company, the underwriter or including the Initiating Holders, and in proportion (as nearly as practicable) to the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from amount of Registrable Securities of the registration and if Company owned by each Holder; provided, however, that the number of securities shares of Registrable Securities to be included in such registration was previously underwriting shall not be reduced as a result of marketing factors unless all other securities proposed to be sold by persons other than the Holders are first entirely excluded from the underwriting.
(c) The Company is obligated to effect only two (2) such registrations pursuant to this Section 1.3(f)2.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities 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 the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofany twelve month period.
Appears in 1 contract
Requested Registration. (a) If At any time after the Expiration Date, in case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request from an Initiating Holder or Initiating Holders that the Company effect any a registration with respect to all or a part of the Registrable Registerable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablepracticable use its best efforts to register (including, without limitation, the execution of an undertaking to file post- effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and in any event within sixty (60appropriate compliance with federal government requirements) days of receipt of such request, file a registration statement covering such Registrable Securities the sale and distribution of the Initiating Holders Registerable Securities as are specified in such request, together with all or such portion of the Registrable Registerable Securities of any other Holder or Holders joining in such request as are specified in a written request received by the Company given within ten (10) days after receipt of such written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or file a registration statement pursuant to take any action this Section:
(A) within two hundred seventy (270) days after the effectiveness of the registration statement relating to effect, any such a registration effected pursuant to this Section 1.3:1.3(a) or Section 1.4(a);
(iB) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(C) in any registration having an aggregate sales price (before deduction of underwriting discounts and commissions) of less than $5,000,000; or
(D) after the Company has effected two (2) four such registrations pursuant to this Section 1.3 (counting for these purposes only 1.3(a) and such registrations which have been declared or ordered effective and registrations effective; provided, however, that any registration request which have been is subsequently withdrawn by shall not be deemed to be a registration under this subsection (D) if the Holders as requesting such registration shall have reimbursed the Company for all Registration Expenses related to which such withdrawn registration and provided further, that Initiating Holder shall be entitled to request no more than two registrations pursuant to this Section 1.3(a). Notwithstanding the foregoing, if at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request, then the Holders shall not elected be required to bear the Registration Expenses pay any of such expenses and such registration shall not be counted as a registration pursuant to this Section 1.6 hereof and would, absent such election, have been required to bear such expenses1.3(a)(ii)(D);
(ii) during the period starting with the date sixty (60) days prior . Subject to the Company’s good faith estimate foregoing clauses (A) through (D), the Company shall file a registration statement covering the Registerable Securities so requested to be registered as soon as is practicable after receipt of the date request or requests of filing ofthe Holders; provided, and ending on a date one hundred eighty however, that (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iiii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company and its shareholders for such registration statement to be filed in the near future and that it is therefore in the best interests of within such period, then the Company to may defer the filing of such registration statement, the Company shall have the right to defer such filing statement for the a period during which such disclosure would be materially detrimentalof not more than sixty (60) days, provided that the Company may not defer exercise such filing for a period of more than one hundred twenty sixty (12060) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner day hold off more than once in during any twelve two hundred seventy (12270) month day period.
, or (dii) The registration statement filed pursuant to if at the time of such request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold determines it desires to register shares for the account of the Company, then the Company can so notify the Holders who shall then have rights to participate in such registration statement as provided in Section 1.4.
(eb) If the Initiating Holders intend to distribute the Registrable Registerable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and 1.3. In such event, the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The 1.3(a)(i), and the Holders shall select an underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the The right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 1.3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s Registrable 's Registerable Securities in the underwriting to the extent provided herein. All The Company shall (together with all Holders proposing to distribute distributing their securities Registerable Securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters under writers selected for such underwriting.
(f) . Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters managing underwriter advises the Initiating participating Holders in writing that marketing factors factors, so as to not materially adversely impact the market price of the Company's Common Stock, require a limitation on of the number of securities shares to be underwrittenunderwritten (an "UNDERWRITER'S CUTBACK"), the Initiating Holders Company shall so advise all holders of Registrable Securities that would otherwise be underwrittenparticipating Holders, and the number of securities to shares of Registerable Securities that may be included in the registration and underwriting shall be allocated among all participating Holders thereof in accordance with Section 1.14 hereofproportion, as nearly as practicable, to the respective amounts of Registerable Securities held by such Holders. If a person who has requested inclusion in such registration as provided herein does not agree to any Holder disapproves of the terms of any such the underwriting, such person shall be excluded he may elect to withdraw therefrom by written notice from to the Company, the underwriter or the Initiating Holders, Company and the securities so excluded shall be withdrawn from managing underwriter. If, by the withdrawal of such registration. If securities are so withdrawn from the registration and if the Registerable Securities a greater number of securities to Registerable Securities held by other Holders may be included in such registration was previously reduced as a result of marketing factors pursuant (up to this Section 1.3(f), the limit imposed by the underwriters) the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities included Registerable Securities in the registration the right to include additional securities Registerable Securities in the registration same proportion used in an aggregate amount equal to determining the number limitation as set forth above. Any Registerable Securities which are excluded from the underwriting by reason of securities so withdrawn, with the underwriter's marketing limitation or withdrawn from such securities to underwriting shall be allocated among withdrawn from such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofregistration.
Appears in 1 contract
Sources: Registration Rights Agreement (Indus International)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration with respect to all or a part any portion of the issued and outstanding Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000Securities held by Initiating Holders, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders, which notice shall include the approximate date that the registration statement is expected to be filed with the Commission; and
(ii) as soon as practicablepracticable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments and in any event within sixty (60other governmental requirements) days of receipt of such request, file a registration statement covering such all Registrable Securities of which the Initiating Holders as are specified in such request, together with the request to be registered and all Registrable Securities of which the other Holders joining in such request as are specified in a written request received by the Company to be registered within ten twenty (1020) days after receipt of such written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The that the Company shall not be obligated to effect, or to take any action to effect, any such file a registration statement pursuant to this Section 1.35:
(iA) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(B) within 120 days following the effective date of any registered offering of the Company's securities to the general public in which the Holders of Registrable Securities shall have been able effectively to register all Registrable Securities as to which registration shall have been requested; or
(C) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only 5 and such registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders effective, except as to which the Holders have not elected to bear the Registration Expenses pursuant to provided in Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior 7. Subject to the Company’s good faith estimate of foregoing clauses (A) through (C), the date of filing ofCompany shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, and ending on a date one hundred eighty but in any event within forty-five (18045) days after receipt of the effective date of, a Company-initiated registration, provided that request or requests of the Company is actively employing in good faith all commercially Initiating Holders and shall use reasonable best efforts to cause have such registration statement to become effective; or
(iii) if promptly declared effective by the Initiating Holders propose to dispose of Commission whether or not all Registrable Securities which may requested to be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If can be included; provided, however, that if the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company and its shareholders for such registration statement to be filed in the near future within such forty-five (45) day period and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.the
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(eb) 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 Section 1.3(a) hereof and request. In such event or if an underwriting is required by subsection 5(c), the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 5(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice for the underwriting of all of such Registrable Securities being registered. The right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 5 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 The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) . Notwithstanding any other provision of this Section 1.35, if the representative of the underwriters managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, the Initiating Holders Company shall so advise all holders of Registrable Securities that would otherwise be underwrittenHolders, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms shares of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.Registrable
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at At any time or times after the earlier of (i) three (3) years after the date hereof or (ii) beginning six (6) months after the effective date of the registration statement for the an Initial Public Offering, a written request that an Investor (the "Initiating Holder") may by notice in writing to the Company effect any registration with respect (which notice shall specify the number of shares of Registrable Stock proposed to be sold and the intended method of disposition thereof) request the Company to register under the Securities Act all or a part any portion of shares of Registrable Stock held by such Initiating Holder or Investors for sale in the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are manner specified in such requestnotice. Notwithstanding anything to the contrary contained herein, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated required to effect, or seek to take any action cause a Registration Statement to effect, any such registration become effective pursuant to this Section 1.3:
3.2: (iA) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the within a period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) 90 days after the effective date ofof any Registration Statement (other than a Registration Statement on Forms ▇-▇, a Company▇-initiated registration▇ or any successors thereto), provided that the Company is actively employing in good faith all commercially shall use its reasonable best efforts to cause a registration requested hereunder to be declared effective promptly following such registration statement to become effectiveperiod if such request is made during such period; or
or (iiiB) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company or its stockholders for such registration statement a Registration Statement to be filed at such time, or that it would require disclosure of material non-public information relating to the Company which, in the near future and that it is therefore in the best interests reasonable opinion of the Company Board, should not be disclosed, then the Company's obligation to defer use all reasonable efforts to register, qualify or comply under this Section 3.2 shall be deferred for a period not to exceed ninety (90) days from the filing date of receipt of written request from such registration statementHolders; provided, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimentalhowever, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in utilize this manner deferral right more than once in any twelve (12) twelve-month period.
(db) The registration statement filed pursuant to the request Following receipt of any notice given under this Section 3 by the Initiating Holders mayHolders, the Company shall promptly notify in writing all Investors that such registration is to be effected and, subject to the provisions of the last sentence of Section 1.14 hereof3.2(a), include Other Shares held shall use its best reasonable efforts to register under the Securities Act, for public sale in accordance with the method of disposition specified in such notice from such requesting Investors, the number of shares of Registrable Stock specified in such notice (and in all notices received by Other Stockholders and may include securities of the Company being sold for pursuant hereto). Investors, other than the account Initiating Holders, shall notify the Company of their desire to participate in the Registration within twenty (20) days of the Company.
's notice to them. The Company shall be obligated to register Registrable Stock pursuant to Section 3.2(a) on two (e2) If occasions only, provided, however, that such obligation shall be deemed satisfied only when a Registration Statement covering all shares of Registrable Stock specified in notices received as aforesaid and which have not been withdrawn by the Holder thereof, for sale in accordance with the method of disposition specified by the Initiating Holders, shall have become effective, except as set forth in the next sentence. A registration which does not become effective after the Company has filed a Registration Statement with respect thereto solely by reason of the refusal of the Initiating Holders intend to distribute the Registrable Securities covered proceed shall be deemed to have been effected by their request by means of an underwriting, they shall so advise the Company as a part at the request of their request made pursuant to Section 1.3(a) hereof such Initiating Holders and the Company shall include such information in be deemed to have satisfied one of its two obligations under this Section 3.2(a), unless the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating registration was withdrawn at the request of the Holders holding of a majority of the Registrable Securities held by all Initiating Holders and shall Stock to be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities sold in such registration shall be conditioned offering upon learning of a material adverse change in the condition, business or prospects of the Company (other than a change in market demand for its securities or in the market price thereof) from that known to such Holder’s participation Holders at the time of their request (or of which the Company advised them in writing within 20 days thereafter) that makes the proposed offering unreasonable in the good faith judgment of a majority in interest of such underwriting Holders.
(c) If the Registration Statement is to cover an underwritten distribution and in the good faith judgment of the managing underwriter of such public offering the inclusion of such Holder’s all of the Registrable Securities in the underwriting Stock requested for inclusion pursuant to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together this Section 3 would interfere with the Companysuccessful marketing of a smaller number of shares to be offered, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on then the number of securities to be underwritten, the Initiating Holders shall so advise all holders shares of Registrable Securities that would otherwise be underwritten, and the number of securities Stock to be included in the underwriting Offering shall be allocated reduced to the required level with the participation in such offering to be reduced to the required level, as follows, unless otherwise determined by a majority in interest of the Holders: first, by reducing (down to zero, if necessary) on a pro rata basis the participation of any Persons who are not Holders and second, by reducing on a pro-rata basis the participation of other Holders requesting such registration; such pro rata basis to be calculated based upon the number of shares of Registrable Stock owned by any such Holders or on the number of shares of Stock owned by such Persons, as the case may be. The Company shall be entitled to include in any Registration Statement referred to in this Section 3.2(a), for sale in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms method of any such underwriting, such person shall be excluded therefrom disposition specified by written notice from the Company, the underwriter or the Initiating Holders, (i) shares of Stock for the Company's own account and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of (ii) securities to be included sold by stockholders of the Company other than the holders of Registrable Stock to the extent all Registrable Stock set forth in such registration was previously reduced notice are covered by such registration, except as a result of marketing factors pursuant and to this Section 1.3(f)the extent that, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration opinion of the right to include additional securities in managing underwriter, if any, such inclusion would adversely affect the registration in an aggregate amount equal to marketing of the number of securities so withdrawn, with such securities Registrable Stock to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofsold.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, Holders at any time or times after not before the earlier of (i) three (3) years after the date hereof Closing Date or (ii) six (6) months one year after the effective date closing of a firm commitment, underwritten public offering of the registration statement for Company's securities registered under the Initial Public OfferingSecurities Act of 1933, as amended (the "IPO"), a written request that the Company effect any registration with respect to all or a part of the Registrable SecuritiesSecurities having an aggregate offering price, net of underwriting discounts and expenses, equal to or exceeding $10.50 per share of Class B Common Stock (as adjusted for any stock dividends, combinations or splits with respect to such shares) and the aggregate proceeds of which (after deduction for underwriter’s 's discounts and expenses related to the issuance) exceed $30,000,000, 2 million the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablepracticable thereafter, use its best efforts to effect such registration (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and in any event within sixty (60appropriate compliance with the Securities Act) days and as would permit and facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) mailed or delivered. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(iA) after 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 by the Securities Act;
(B) After the Company has effected two (2) initiated one such registrations registration pursuant to this Section 1.3 1.3(a) (counting for these purposes only registrations a registration which have has been declared or ordered effective and registrations pursuant to which securities have been sold or a registration which has been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 1.5 hereof and would, absent such election, have been required to bear such expenses);; or
(iiC) during During the period starting with from the date sixty (60) days prior to the Company’s '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 ofof an underwriting agreement relating to, a Company-initiated registration, ; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective;
(D) If the IPO has not taken place, if the Initiating Holders do not request such offering be firmly underwritten by an underwriter selected by the Initiating Holders (subject to the consent of the Company, which consent will not be unreasonably withheld); or
(iiiE) If the IPO has not taken place, if the Company and the Initiating Holders propose are unable to dispose obtain the commitment of Registrable Securities which may be registered on Form S-3 pursuant the underwriter described in clause (D) to a request made under Section 1.5 hereoffirmly underwrite the offer.
(cb) If Subject to the foregoing clauses (A) through (E), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders; provided, however, that if (i) in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company, and the Board of Directors concludes, as a result, that it is essential to defer the filing of such registration statement at such time, or in the good faith judgement of the Board of Directors of the Company, such registration should be delayed due to the timing of the Company's annual audit and (ii) the Company shall furnish to the Initiating such Holders a certificate signed by the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company Company, it would be materially seriously detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, or, that such registration should be delayed due to the timing of the Company's annual audit, whichever is applicable, then the Company shall have the right to defer such filing for the a collective period during which such disclosure would be materially detrimental, provided that the Company may any single calendar year of not defer such filing for a period of more than one hundred and twenty (120) days after the receipt of the request of the Initiating Holders. The Holders and, provided further, that the Company may shall not defer its obligation obligations in this manner more than once twice in any twelve (12) twelve-month period.
(d) The . If all the Holders are allowed to include all Registrable Securities that such Holders requested be included in the registration statement filed pursuant to the request of the Initiating Holders, the registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of this Section 1.14 1.3(b) and Section 1.11 hereof, include Other Shares held by Other Stockholders other securities of the Company, with respect to which registration rights have been granted, and may include securities of the Company being sold for the account of the Company. The Company shall pay the reasonable fees and disbursements of one counsel selected by a majority in interest of the Holders in connection with any registration under this Section 1.3.
(ec) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to this Section 1.3 shall be conditioned upon such Holder’s Holders' 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 with respect to such participation and inclusion) to the extent provided herein. All A Holder may elect to include in such underwriting all or a part of the Registrable Securities he holds.
(d) If the Company shall request inclusion in any registration pursuant to this Section 1.3 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to this Section 1.3, and if all of the Holders are allowed to include all Registrable Securities that such Holders requested to be included in the registration statement filed pursuant to the request of the Initiating Holders, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 1(including this Section 1.3). The Company shall, together with all Holders and other persons proposing to distribute their securities through such underwriting shall, together with the Companyunderwriting, enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting.
underwriting by a majority in interest of the Initiating Holders (f) subject to the Company's consent, which shall not be unreasonably withheld). Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities shares to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities shares to be included in the underwriting or registration shall be allocated as set forth in accordance with Section 1.14 1.11 hereof. If a person who has requested inclusion in such registration as provided herein above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the . The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If securities shares are so withdrawn from the registration and if the number of securities shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f1.3(d), then the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities shares so withdrawn, with such securities shares to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof1.11.
Appears in 1 contract
Sources: Investors' Rights Agreement (Tier Technologies Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the with an anticipated aggregate proceeds offering price of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed at least $30,000,00010,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(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, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(ii) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations are consummated and for which have been withdrawn by the Holders as all Registrable Securities requested to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expensesbe registered are registered);
(iiiii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iiiiv) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) 90 days after receipt of the request of the Initiating Holders, and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act or 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. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company and shall be reasonably acceptable to the CompanyInitiating Holders. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
(g) Notwithstanding anything to the contrary in this Agreement, at any time after three years following the date hereof, Holders holding a majority of the outstanding Voting Registrable Securities, voting together as a single class on an as-converted to Voting Common Stock basis, may, by written request, cause the Company to effect an Initial Public Offering and may cause the Company to take any internal restructuring steps as may be reasonably necessary to effect an Initial Public Offering.
Appears in 1 contract
Sources: Investors’ Rights Agreement (MapLight Therapeutics, Inc.)
Requested Registration. (a) If At any time after the third anniversary of the Closing Date, each of Gellein and ▇▇▇▇▇ shall have the right to require the Company, by written request (the "Demand Request"), to effect an Underwritten Registration with respect to Registrable Shares owned by such individuals, if any, and their respective Affiliates. The Company will give prompt written notice (the "Notice of Demand Request") of such demand for an Underwritten Registration to all Holders and thereupon the Company shall, as expeditiously as reasonably practicable, file a Registration Statement relating to the registration under the Securities Act of the Registrable Shares which the Company has been so requested to register by the demanding Holder and all other Registrable Shares as to which Holders (other than the demanding Holder) shall have made a written request to the Company for registration thereof within 30 days after the Notice of Demand Request, all to the extent necessary to permit the sale or other disposition in an Underwritten Offering by such Holders of the Registrable Shares to be so registered; provided; however, that (i) if such registration is a Cutback Registration, the Company shall receive from Initiating Holdersregister in such registration (A) first, at any time or times after the earlier Registrable Shares proposed to be sold by Gellein and ▇▇▇▇▇ and their respective Affiliates on a pro rata basis, based upon the number of Registrable Shares that each such party and their Affiliates originally sought to include in such registration and (iB) three (3) years after second, the date hereof or Registrable Shares proposed to be sold by each of the Holders and their respective Affiliates, other than Gellein and ▇▇▇▇▇ and their respective Affiliates, on a pro rata basis, based upon the number of Registrable Shares that each such party and their respective Affiliates originally sought to include in such registration; and (ii) six that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 4(a) (6A) months after within 90 days (or such other date as may be agreed between the Company, the Holders, and the managing underwriter of an Underwritten Offering of Registrable Shares) immediately following the effective date of any Registration Statement pertaining to such an Underwritten Offering; (B) if a Requested Registration has become effective under the Securities Act within the past 360 days; or (C) if the demanding Holder has requested the registration statement of a number of Registrable Shares which is less than 5% of the outstanding Common Stock or greater than 15% of the outstanding Common Stock, in each case set forth in the Company's Quarterly Report on Form 10-Q (or any successor form) for the Initial Public Offering, a written request that Company's most recently completed fiscal quarter prior to the Company effect any registration with respect to all or a part Company's receipt of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationDemand Request.
(b) The Company agrees to keep each Registration Statement filed pursuant to this Section 3 continuously effective and usable for the resale of Registrable Shares for a period of up to 90 days or until all Registrable Shares included in such Registration Statement have completed the distribution described in the Registration Statement relating thereto, whichever first occurs (the "Demand Effectiveness Period"), provided, however, that during such 90-day period the Company may give notice to all such Holders that the Registration Statement or the prospectus included therein is no longer usable for offers and sales of Registrable Shares, in which case the 90-day period will be tolled until such time as each such Holder and the managing underwriter of such Underwritten Offering either receives copies of a supplemented or amended prospectus or is advised in writing by the Company that use of the prospectus may be resumed (it being understood that in such case the Company shall promptly comply with its obligations under Section 6(a)).
(c) The Company, if eligible to do so, shall file a Registration Statement covering the Registrable Shares so requested to be registered on Form S-2 or S-3 or any similar short-form registration under the Securities Act as soon as reasonably practicable after the receipt of the Demand Request; provided, however, that if the managing underwriter of such Underwritten Offering shall advise the Company in writing that, in its opinion, the use of another form of Registration Statement is of material importance to the success of such proposed Underwritten Offering, then such Underwritten Registration shall be effected on such other form.
(d) Each of Gellein and ▇▇▇▇▇ shall be entitled to two Requested Registrations. Notwithstanding anything contained in this Section 3, if (x) the SEC has issued a stop-order as a result of actions taken by a demanding Holder or (y) a demanding Holder gives notice (the "Delaying Notice"), at any time prior to the time the Registration Statement is declared effective or prior to the last day of Demand Effectiveness Period, that such demanding Holder desires the Company to either withdraw the Registration Statement with the SEC, if the Registration Statement has been filed with the SEC, or postpone filing the Registration Statement, if the Registration Statement has not been filed with the SEC and the Company is immediately able to file the Registration Statement, then, in the case of clause (x) herein, the issuance of the stop-order, or, in the case of clause (y) herein, the Delaying Notice, shall reduce by one the number of Requested Registrations to which such demanding Holder is entitled.
(e) An Underwritten Registration requested pursuant to this Section 3 shall not be obligated deemed to effect, or have been effected unless the Registration Statement relating thereto and any post-effective amendment required to take commence the Underwritten Offering contemplated thereby has been declared effective by the SEC and maintained continuously effective for the Demand Effectiveness Period.
(f) The right of any action Holder to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate 3 shall be conditioned upon inclusion of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for Holder in the account of the Company.
(e) 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 Section 1.3(a) hereof underwriting and the Company shall include such information Holder entering into an underwriting agreement, in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be form reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
underwriting by the demanding Holder which are reasonably satisfactory to the Company. The Company shall enter an underwriting agreement with a managing underwriter or underwriters of an Underwritten Offering containing representations, warranties, indemnities and agreements customarily included (fbut not inconsistent with the agreements contained herein) Notwithstanding by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, selling holders. The Company may include securities for its own account or the account of any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion Person in such registration as provided herein does not agree to if the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the managing underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration agrees and if the number of securities to be included in so doing would not make such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofCutback Registration.
Appears in 1 contract
Requested Registration. (a) If At any time following the 180th day after the consummation of the Company's initial public offering of shares of Common Stock, any Major Purchaser may deliver to the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request that the Company effect any the registration with respect to under the Securities Act of all or a part of the Registrable Securities, Securities held by such person (a "REQUESTED REGISTRATION"). Upon the aggregate proceeds delivery of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000such request, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice will use its best efforts to effect the registration under the Securities Act of the proposed registration Registrable Securities that the Company has been so requested to all other Holders; and
(iiregister in accordance with this Section 2(a) as soon as practicable, and in any event within sixty (60) days of after receipt of such request, request or within thirty (30) days after receipt of such request if the Company is qualified to file a registration statement covering such Registrable Securities of on Commission Form S-3 or any successor or similar short-form registration statement (collectively, "COMMISSION FORM S-3"); PROVIDED, HOWEVER, that (i) the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration effect a Requested Registration pursuant to this Section 1.3:
2(a) during the 180 day period immediately following the commencement of a public offering of the Company's equity securities and (iii) after the Company has effected two (2) shall not be obligated to effect a Requested Registration on Commission Form S-1 if the anticipated aggregate offering price of the Registrable Securities and other securities to be sold in such registration is less than $1,000,000 unless the requesting Major Purchasers pay the Registration Expenses incurred with respect to such registration. The Company must effect an unlimited number of registrations pursuant to this Section 1.3 subdivision (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(iia) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause extent such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which registrations may be registered effected on Commission Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If S-3, but the Company shall furnish not be obligated to effect more than three Requested Registrations hereunder other than on Commission Form S-3. Subject to subdivision (f), the Initiating Holders a certificate signed by the President Company may include in such Requested Registration other securities of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statementsale, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that Company's account or for the Company may not defer such filing for a period account of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders mayother person, subject to the provisions of Section 1.14 hereofmanaging underwriter, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwritingif any, they shall so advise the Company as a part of their request made pursuant to Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and determining that the inclusion of such Holder’s Registrable Securities in additional shares will not interfere with the underwriting orderly sale of the underwritten securities at a price range acceptable to the extent provided herein. All Holders proposing to distribute their 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.
(f) Notwithstanding any other provision of Holder making a request under this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f2(a), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time one or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date more of the registration statement Stockholders holding an aggregate of a majority of the common stock issuable upon conversion of the Dynex Shares ("Registrable Securities") shall notify the Grantee in writing that such Stockholder or Stockholders intend to offer or cause to be offered for the Initial Public Offering, a written request that the Company effect any registration with respect to public sale all or a part any portion of the their Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice Grantee will notify all of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days remaining holders of Registrable Securities upon receipt of such requestnotification from such Stockholder or Stockholders. Upon the written request of any such Stockholder delivered to the Grantee within 15 days after receipt from the Grantee of such notification, file a registration statement covering the Grantee will use its best efforts to cause, at the expense of the Stockholders of such Registrable Securities Securities, such of the Initiating Holders as are specified in such request, together with the Registrable Securities as may be requested by any such Stockholder (including the Stockholder or Stockholders giving the initial notice of other Holders joining intent to register hereunder) to be registered under the Act in such request as are specified in a written request received by accordance with the Company within ten (10) days after such written notice from terms of this Section 8.13. Notwithstanding the Company is givenforegoing, and use commercially reasonable efforts to effect such registration.
(b) The Company the Grantee shall not be obligated required to effect, or to take any action to effect, any such a registration requested pursuant to this Section 1.38.13 if any of the following conditions exist:
(i) after the Company Grantee has effected two one (21) such registrations registration pursuant to this Section 1.3 (counting for these purposes only registrations which have 8.13 and such registration has been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)Commission;
(ii) during if a prior registration has become effective, regardless of the period starting with the date sixty manner in which it was initiated, within six (606) days prior to the Company’s good faith estimate months of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectivedemand; or
(iii) if the Initiating Holders propose request for registration has been received by the Grantee subsequent to dispose the giving of written notice by the Grantee, made in good faith, to the Stockholders of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders effect that the Grantee is commencing to prepare a certificate signed by the President Grantee-initiated registration statement (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 or any other similar rule of the Company stating that Commission under the Securities Act is applicable); provided, however, that, in the good faith judgment case of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed condition described in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statementclause (ii), the Company Grantee shall have the right use its best efforts to defer achieve such filing for the effectiveness promptly following such six-month period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of if the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal 8.13 has been made prior to the number expiration of securities so withdrawnsuch six-month period. The Grantee may postpone the filing of any registration statement requested hereunder for a reasonable period of time, with not to exceed 120 days, if the Grantee has been advised by legal counsel that such securities to be allocated among filing would require the disclosure of a material transaction or other factor and the Grantee determines reasonably and in good faith that such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofdisclosure would have a material adverse effect on the Grantee.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holdersreceive, at any time or times after the earlier of one-hundred eighty (i180) three (3) years days after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offeringhereof, a written request (a “Demand Request”) from any of the Holders (each, an “Initiating Holder”) that the Company effect a registration covering any registration with respect to all or a part of the such Holder’s Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000Securities then outstanding, the Company shall:, within sixty (60) calendar days of the receipt of such written request (the “Filing Date”), effect the filing of a registration statement in compliance with the terms set forth herein.
(ib) Upon receipt of any Demand Request, the Company shall promptly (but in any event within ten five (105) days of receipt thereof, days) give written notice of the such proposed registration to all other Holders; and
, who shall have the right, exercisable by written notice to the Company within five (ii) as soon as practicable, and in any event within sixty (605) days of their receipt of the Company’s notice, to elect to include in such requestregistration such portion of such Holder’s Registrable Securities then outstanding as may be requested. The Initiating Holders together with all other Holders requesting to have such portion of such Holder’s Registrable Securities then outstanding included in a registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Agreement.
(c) The Company shall thereafter use its best efforts to, within one-hundred eighty (180) days thereafter (the “Effectiveness Target Date”), have such registration statement declared effective by the SEC pursuant to Rule 415 of the Securities Act. The registration statement when declared effective (including the documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Company shall not be required to file a registration statement covering such Registrable Securities that the Company would otherwise be required to file pursuant to this Section 2 if the selling Holders would be deemed to be underwriters selling on behalf of an issuer under publicly announced interpretations of the Initiating Holders as are specified in such request, together with SEC interpreting Rule 415 of the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationAct.
(bd) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.32:
(i) after the Company has effected two initiated four (24) such registrations pursuant to this Section 1.3 (counting for these purposes only 2(a) and such registrations which have been declared or ordered effective effective, and registrations which have been withdrawn by the Holders as are able to which register and sell at least fifty percent (50%) of the Holders have not elected Registrable Securities requested to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent be included in such election, have been required to bear such expenses)registration;
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of shares of Registrable Securities which that may be immediately registered on Form S-3 pursuant to a request made under Section 1.5 hereof.3 of this Agreement; or
(ciii) If during the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) first 180 days after receipt the effective date of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for under Sections 2 or 3 hereof if the account Requesting Holders have been afforded the opportunity to register in such registration all or a majority of the Companytheir Registrable Securities.
(e) 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 A registration will not count as a part registration for purposes of their request made pursuant to Section 1.3(a2(d)(i) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a(3)(iii) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such eventuntil it has become effective; provided, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shallhowever, together with the Companythat if, enter into after it has become effective, an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders offering of Registrable Securities that would otherwise be underwrittenpursuant to a registration is interfered with by any stop order, and injunction or other order or requirement of the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in SEC or other governmental agency or court, such registration as provided herein does will be deemed not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, have been effected and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced will not count as a result registration for purposes of marketing factors pursuant to this Section 1.3(fSections 2(d)(i) and (3)(iii), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time Purchaser or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Purchasers a written request that the Company effect any a registration with respect to all or a part for the sale of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000Restricted Stock, the Company shall:
(i) within ten (10) days of receipt thereofwill, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, effect such registration as may be so requested and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities as would permit or facilitate the sale and distribution of the Initiating Holders as are Restricted Stock specified in such request, together with provided that the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.38.4:
(i) after Prior to the earlier of the fifth anniversary of the date hereof or the completion of the initial, firm-commitment underwritten public offering of the Common Stock pursuant to an effective registration statement under the Securities Act;
(ii) If the request from the Purchaser(s) is for a registration on Form S-1, ▇-▇ ▇▇ S-18 (or their equivalents) and the Company has previously effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses8.4(a);
(iiiii) during If the period starting with Company has effected any registration pursuant to this Section 8.4(a) within twelve months of such request;
(iv) If the date sixty (60) days prior to the Company’s good faith estimate aggregate proposed selling price of the date Restricted Stock to be included by the Purchaser(s) is less than $1,000,000 in the case of filing ofa registration on Form S-1, and ending ▇-▇ ▇▇ S-18 or $500,000 in the case of a registration on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveForm S-3; or
(iiiv) if If the Initiating Holders propose to dispose request from the Purchaser(s) is for registration of Registrable Securities which may be a class of securities other than Common Stock, and the Company has not previously effected a registered on Form S-3 pursuant to a request made under Section 1.5 hereofpublic offering of such class of securities.
(cb) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that Purchaser, in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company making a valid request for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders maySection 8.4(a), subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) If the Initiating Holders intend intends to distribute the Registrable Securities Restricted Stock 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a8.4(a) hereofabove. The underwriter or underwriters shall be selected by Initiating Holders holding a majority right of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable Purchaser to the Company. In such event, the right of any Holder registration pursuant to include such Holder’s Registrable Securities in such registration this Section 8.4 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of the Purchaser's Restricted Stock in the underwriting. If holders of securities of the Company (other than holders of Restricted Stock) who are entitled by contract with the Company to have securities included in any registration initiated pursuant to this Section 8.4 (the "Other Shareholders") request such Holder’s Registrable Securities inclusion, the Purchaser(s) shall offer to include the securities of such Other Shareholders in the underwriting to and may condition such offer on their acceptance of the extent provided hereinfurther applicable provisions of this Section 8. All Holders proposing to distribute their securities through such underwriting shall, together with If the Company, enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises offering advise the Initiating Holders Purchaser(s) in writing that marketing factors require a limitation on the number of securities shares to be underwritten, the Initiating Holders securities of the Company held by the Other Shareholders shall, to the extent necessary, be first excluded from such registration before any shares of Restricted Stock held by the Purchaser(s) are excluded. No securities excluded from the underwriting by reason of the underwriter's marketing limitation shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.in
Appears in 1 contract
Requested Registration. (a) If At any time following an initial public offering of the Common Stock, or any security issued in exchange for or as replacement of the Common Stock pursuant to a registration under the Securities Act (the "IPO"), if the Company shall receive from an Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Investor Holder a written request that the Company effect any registration with respect to all or a part of the Registrable Investor Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration registration, qualification or compliance to all other HoldersHolders of Registrable Securities and all Inside Holders of Registrable Inside Securities; and
(ii) as soon as practicable, use its diligent best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and in any event within sixty (60appropriate compliance with applicable regulations issued under the Securities Act) days as may be so requested and as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Investor Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities and Registrable Inside Securities of other any Holders or Inside Holders joining in such request as are specified in a written request received by the Company within ten (10) 10 business days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(bgiven under Section 3.2(a)(i) The above; provided that the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.33.2:
(i) after 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, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
B. After the Company has effected two one (21) such registrations registration pursuant to this Section 1.3 (counting for these purposes only registrations which have 3.2 and such registration has been declared or ordered effective and registrations which the sale of at least fifty percent (50%) (it being agreed that if less than such amount shall have been withdrawn sold due to any limitation placed by an underwriter on the Holders as number of shares to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and wouldbe sold, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause will effect one (1) additional registration on the same terms and conditions) of such registration statement to become effectiveRegistrable Investor Securities shall have closed; or
(iii) if C. If the Initiating Holders propose to dispose of Registrable Investor Securities, Registrable Securities which may and Registrable Inside Securities requested by all Investor Holders, Holders and Inside Holders to be registered on Form S-3 pursuant to a such request made under Section 1.5 hereof.
have an anticipated aggregate public offering price (cbefore any underwriting discounts and commissions) If (the Company shall furnish to the Initiating Holders a certificate signed by the President "Aggregate Offering Price") of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more less than one hundred twenty (120) days after receipt of the request of the Initiating Holders$3,500,000. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders Investor Holder may, subject to the provisions of Section 1.14 hereof3.2(b) below, include Other Shares held by Other Stockholders and may include other securities of the Company being sold for the account or securities which are held by Persons who, by virtue of agreements with the Company, are entitled to include their securities in any such registration. The registration rights set forth in this Section 3 shall be assignable, in whole or in part, to any transferee of Common Stock (who shall be bound by all obligations of this Section 3).
(eb) If the Initiating Holders intend Investor Holder intends to distribute the Registrable Investor 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 Section 1.3(a3.2. If holders of securities of the Company other than Registrable Investor Securities who are entitled, by contract with the Company or otherwise, to have securities included in such a registration (the "Other Shareholders") hereof request such inclusion, the Investor Holder shall offer to include the securities of such Other Shareholders in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 3. The Investor Holder, Holders and Inside Holders whose shares are to be included in such registration and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by (together with all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders Other Shareholders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting.
(f) underwriting by the Initiating Investor Holder and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 1.33.2, if the representative of the underwriters advises the Initiating Holders Investor Holder in writing that marketing factors require a limitation on the number of securities shares to be underwritten, the Initiating securities of the Company held by Other Shareholders, other than the Holders and Inside Holders, shall be excluded from such registration to the extent so advise all holders required by such limitation. If, after the exclusion of Registrable Securities that would otherwise be underwrittensuch shares, and further reductions are still required, the number of shares included in the registration by each Holder and Inside Holder shall be reduced on a pro rata basis (based on the number of shares held by such Holder and Inside Holder) by such minimum number of shares as is necessary to comply with such request. If, after the exclusion of such shares, further reductions are still required, the number of shares included in the registration by the Investor Holder shall be reduced by such minimum number of shares as is necessary to comply with such request. No Registrable Investor Securities or any other securities to excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in the underwriting shall be allocated in accordance with Section 1.14 hereofsuch registration. If a person the Investor Holder or any Other Shareholder who has requested inclusion in such registration as provided herein does not agree to above disapproves of the terms of any such the underwriting, such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the underwriter or and the Initiating Holders, and the Investor Holder. The securities so excluded withdrawn shall also be withdrawn from such registration. If the underwriter has not limited the number of Registrable Investor Securities to be underwritten, the Company may include its securities are for its own account in such registration if the representative so withdrawn from the registration agrees and if the number of securities to be Registrable Investor Securities, Registrable Securities and Registrable Inside Securities which would otherwise have been included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to and underwriting will not thereby be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereoflimited.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration with respect to all or a part of the Registrable Securities, the Securities then outstanding having anticipated aggregate proceeds equal to or exceeding Ten Million Dollars ($10,000,000), net of which (after deduction for underwriter’s underwriting discounts and expenses related to associated with the issuance) exceed $30,000,000registration and offering, the Company shallwill:
(ia) within ten (10) days of receipt thereof, Promptly give written notice of the proposed registration (including whether the proposed registration is to be underwritten) to all other HoldersHolders and the Common Stockholders; and
(iib) as As soon as reasonably practicable, use its best efforts to effect such registration (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and in any event within sixty (60appropriate materials to assure compliance with the Securities Act) days and take such actions as would permit or facilitate the sale and distribution of receipt all or such portion of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other Holders joining in such request and Common Shares as are specified in a written request or requests received by the Company from any Holder or Common Stockholder within ten twenty (1020) days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company; provided that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.32.1:
(i) after In any particular jurisdiction in which the Company has effected two (2) would be required to execute a general consent to service of process in effecting such registrations pursuant registration, qualification or compliance unless the Company is already subject to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)Securities Act;
(ii) during Until the earlier to occur of April 30, 2009 or the one hundred eightieth day next following the effective date of the first registration statement pertaining to an initial offering of any of the equity securities of the Company to the general public;
(iii) During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred and eighty (180) days after the effective date of, a Company-initiated registration, ; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective;
(iv) After the Company has initiated two (2) registrations pursuant to this Section 2.1 (counting for this purpose only (A) a registration that has been declared or ordered effective and pursuant to which securities have been sold or (B) a registration that has been withdrawn by the Initiating Holders and with respect to which such Initiating Holders have elected not to bear the Registration Expenses pursuant to Section 2.7 and would, absent such election, have been required to bear such expenses); or
(iiiv) if If the shares of Registrable Securities proposed to be disposed of by the Initiating Holders propose to dispose of Registrable Securities which may be immediately registered on Form S-3 pursuant to a request made under in accordance with Section 1.5 hereof.
(c) 2.13. If the Company shall furnish to the Initiating Holders requesting registration pursuant to this Section 2.1 a certificate signed by the President Chief Executive Officer of the Company stating that that, in the good faith judgment of the Board of Directors of the Company Company, it would be materially seriously detrimental to the Company and its stockholders for such registration statement to be filed in on or before the near future date filing would be required and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that then the Company may not defer direct that such filing request for registration be delayed for a period not in excess of more than one hundred twenty ninety (12090) days after receipt of days, such right to delay a request to be exercised by the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) twelve-month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three one hundred eighty (3180) years after days following the date hereof or first registered public offering of Company's Common Stock, regardless of whether such offering meets the threshold size and per share price levels set forth in Section 1.2 above, and (ii) six (6) months after the effective date of the registration statement for the Initial Public OfferingMarch 8, 1996, a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable SecuritiesSecurities then held by such Initiating Holders, or any portion thereof the aggregate proceeds sale of which (after deduction for underwriter’s discounts and expenses related is reasonably expected to yield gross proceeds to the issuance) exceed Initiating Holders of at least $30,000,000500,000, the Company shallwill:
(i) give written notice of the proposed registration, qualification or compliance to all other Holders within ten (10) days of after receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) use its diligent best efforts to effect, as soon as practicable, all such registrations, qualifications and in any event within sixty (60) days compliances as may be so requested and as would permit or facilitate the sale and distribution of receipt all of such request, file a registration statement covering such the Registrable Securities of the held by such Initiating Holders as are specified in such requestHolders, together with all of the Registrable Securities of other any Holder or Holders joining who joins in such request as are specified in a written request received by the Company within ten thirty (1030) days after such written notice from the Company is given; provided, and use commercially reasonable efforts to effect such registration.
(b) The that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification, or compliance pursuant to this Section 1.34.2:
(iA) after In any particular jurisdiction in which the--Company would be required to execute a general consent to service of process, to register as a dealer, or to cause any officer or employee of the Company has effected two (2) to register as a salesman in effecting such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared registration, qualification or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)compliance;
(iiB) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date Within one hundred eighty (180) days after immediately following the effective date of, a Company-initiated registration, provided that of any registration statement pertaining to an underwritten public offering of securities of the Company is actively employing in good faith all commercially reasonable efforts to cause for its own account;
(C) After the Company has effected one (1) such registration statement pursuant to become effective; orthis Section 4.2;
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cD) If the Company shall furnish to the Initiating such Holders a certificate signed by the President Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its shareholders for such a registration statement to be filed in the near future and that it is therefore in future, then the Company's obligation to use its best interests of the Company efforts to defer the filing of such registration statementregister, the Company qualify or comply under this Section 4.2 shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing deferred for a period not to exceed one hundred eighty (180) days from the date of more than receipt of written request from the Initiating Holders; or
(E) If taking any such action could result in a registration statement being declared effective within one hundred twenty (120) days of the effective date of any registration statement filed pursuant to Section 7.2 of that certain Preferred Stock Purchase Agreement, dated as of August 4, 1987, by and between the Company, Motion Control, Inc. and the investors named therein (the "Preferred Stock Purchase Agreement"). Subject to the foregoing, the Company will use its best efforts to file a registration statement covering the Registrable Securities as soon as practicable after receipt of the request or requests of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(db) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, shall include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 in their request made pursuant to this Section 1.3(a) hereof 4.2 the name, if any, of the underwriter or underwriters that such Initiating Holders would propose, with the consent of the Company (which consent shall not be unreasonably withheld), to employ in connection with the public offering proposed to be made pursuant to the registration requested, and the Company shall include such information in the written notice referred to in clause (i) of Section 1.3(a) hereof4.2(a). The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to this Section 4.2 shall be conditioned upon on such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided hereinunderwriting. All The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting in the manner set forth above. Notwithstanding any other provision of this Section 1.34.2, if the representative of the underwriters underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders Holders of Registrable Securities and the number of shares of Registrable Securities that would otherwise be underwritten, and the number of securities to may be included in the underwriting registration and underwriting, as determined by the underwriters, shall be allocated among all Holders thereof in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion, as provided herein does not agree nearly as practicable, to the terms respective amounts of any Registrable Securities held by such underwriting, such person shall be Holders at the time of filing the registration statement. No Registrable Securities excluded therefrom by written notice from the Company, underwriting by reason of the underwriter or the Initiating Holders, and the securities so excluded underwriter's marketing limitation shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofregistration.
Appears in 1 contract
Sources: Stock Purchase Agreement (Iomed Inc)
Requested Registration. (a) If In case the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration registration, qualification or compliance with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shallwill:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, practicable and in any event within sixty ninety (6090) days of after receipt of such written request, use its commercially reasonable best efforts to effect such registration, qualification or compliance (including, without limitation, the execution of an undertaking to file a registration statement covering post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company within ten twenty (1020) days after such receipt of the written notice from the Company is givenCompany; provided, and use commercially reasonable efforts to effect such registration.
(b) The however, that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.32.5:
(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, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) Prior to twelve (12) months after the effective date of the Company’s initial public offering;
(C) After the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have subparagraph 2.5(a), such registration has been declared or ordered effective and registrations which the securities offered pursuant to each such registration have been withdrawn by the Holders as sold; provided that all Registrable Securities requested for inclusion were in fact included in such registration. The Company shall not be obligated to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)effect more than two registration statements in any twelve (12) month period;
(iiD) during During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration initiated by the Company-initiated registration, ; provided that the Company is actively employing employed in good faith in all commercially reasonable best efforts to cause such registration statement to become effectiveeffective and provided further that the rights of the Initiating Holders to include Registrable Securities for registration in the Company’s registration shall be governed by Section 2.6 hereof; or
(iiiE) if If such registration, qualification or compliance involves securities with an aggregate value less than Ten Million Dollars ($10,000,000). Subject to the foregoing clauses (A) through (E), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the request or requests of the Initiating Holders propose Holders; provided, however, that if (i) in the good faith judgment of the board of directors of the Company (the “Board”), such registration would be seriously detrimental to dispose the Company and the Board concludes, as a result, that it is essential to defer the filing of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
such registration statement at such time, and (cii) If the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company Board, it would be materially seriously detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing (except as provided in clause (D) above) for the period during which such disclosure would be materially detrimental, provided that the Company may up to two (2) periods of not defer such filing for a period of more than one hundred twenty sixty (12060) days each after receipt of the request of the Initiating Holders. The , and provided further, that the Company may shall not defer its obligation in this manner more than once in any twelve (12) twelve-month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Syndax Pharmaceuticals Inc)
Requested Registration. (a) If Upon the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date written request of the registration statement for the Initial Public Offering, a written request Subscriber that the Company effect any the registration with respect to all or a part under the Securities Act of shares of Common Stock held by the Registrable Securities, Subscriber and specifying the aggregate proceeds intended method of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000disposition thereof, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and shall use commercially reasonable its best efforts to effect such registration.
registration under the Securities Act of the number of shares of Common Stock (bthe "Requested Shares") The to the extent required to permit the disposition (in accordance with the intended methods as specified by the Subscriber) of the Requested Shares; provided, however, that (i) the Company shall not be obligated required to effect, or to take any action to effect, effect any such registration at any time when an exemption from registration is otherwise available to the Subscriber affording the Subscriber the right to dispose of all of the shares of Common Stock held by the Subscriber; (ii) the Company shall be required to effect no more than [one (1) registration(s)] for the Subscriber in any twelve month period (including any registration effected pursuant to Section 4.2 hereof) and no more than [three (3)] registrations in the aggregate (not including any registration effected pursuant to Section 4.2 hereof) pursuant to this Section 4.1; (iii) the Company shall not be required to effect a registration under this Section 4.1 after the sixth anniversary of the Closing; (iv) the Company shall not be required to effect a registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) 4.1 during the period starting with the date sixty (60) 60 days prior to the Company’s good faith estimate of the estimated date of filing of, and ending on a the date one hundred eighty (180) 90 days after immediately following the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such any registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant pertaining to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President public offering of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account (other than a registration of the Company.
securities in a Rule 145 transaction or a registration relating to an employee benefit plan); and (ev) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred not be required to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding effect a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of under this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and 4.1 if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.Requested Shares
Appears in 1 contract
Requested Registration. (a) If From the time the Company shall receive from Initiating Holdersis first eligible to use Form S-3 to register the Shares, at any time or times after the earlier holders of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date a majority of the registration statement for Shares shall have the Initial Public Offering, a written right to request that the Company effect file a registration statement on Form S-3 (or any registration with respect successor form to all or Form S-3) for a part public offering of the Shares of the Registrable Securities, where the reasonably anticipated aggregate proceeds of price to
(a) In any particular jurisdiction in which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days would be required to execute a general consent to service of receipt thereofprocess in effecting such registration, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablequalification or compliance, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from unless the Company is given, already subject to service in such jurisdiction and use commercially reasonable efforts to effect such registration.except as may be required by the Securities Act or applicable rules or regulations thereunder;
(b) The After the Company shall not be obligated to effect, or to take any action to effect, any such has effected a registration pursuant to this Section 1.3:
(i) after the Company 6 and such registration has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which the sales of such Registrable Securities shall have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)closed;
(iic) during During the period starting with the date sixty (60) days prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(cd) If (i) in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company, and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to the Initiating Holders Stockholder a certificate signed by the President Chairman of the Board of the Company stating that in the good faith judgment of the Board of Directors of the Company Company, it would be materially seriously detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of not more than one hundred twenty (120) days after receipt of for the request of the Initiating HoldersStockholder. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and Purchaser may include other securities of the Company being sold for the account which are held by officers or directors of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities which are held by all Initiating Holders and shall be reasonably acceptable to the Company. In such eventpersons who, the right by virtue of any Holder to include 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 to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together agreements with the Company, enter into an underwriting agreement are entitled to include their securities in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Simulation Sciences Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration with respect to all or a part at least 51% of the outstanding Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicablepracticable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments and in any event within sixty (60other governmental requirements) days of receipt of such request, file a registration statement covering such all Registrable Securities of that the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company to be registered within ten thirty (1030) days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company; provided that the Company shall not be obligated to effect, or file a registration statement pursuant to take this Section 4:
(A) prior to 120 days after the closing of the Private Placement;
(B) in any action particular state in which the Company would be required to effect, any execute a general consent to service of process in effecting such registration; or
(C) after the Company has effected one such registration pursuant to this Section 1.3:
(i) after the Company 4 and such registration has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior effective. Subject to the Company’s good faith estimate of foregoing clauses (A) through (C), the date of filing ofCompany shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, and ending on a date one hundred eighty but in any event within ninety (18090) days after receipt of the effective date of, a Company-initiated registration, provided that request or requests of the Company is actively employing in good faith all commercially Initiating Holders and shall use reasonable best efforts to cause have such registration statement to become effective; or
(iii) if promptly declared effective by the Initiating Holders propose to dispose of Commission whether or not all Registrable Securities which may requested to be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If can be included; provided, however, that if the Company shall furnish to the Initiating such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company and its shareholders for such registration statement to be filed in the near future within such ninety (90) days period and that it is therefore in the best interests of the Company essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the right expiration of the initial ninety-day (90-day) period within which to defer file such filing for the period registration statement; provided, that during which such disclosure would be materially detrimental, provided that time the Company may not defer such filing file a registration statement for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer securities to be issued and sold for its obligation in this manner more than once in any twelve (12) month periodown account.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(eb) 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 Section 1.3(a) hereof and request. In such event or if any underwriting is required by subsection 4(c), the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 4(a)(i). In either such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Section 4 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 The Company shall (together with all Holders proposing to distribute their securities through such underwriting shall, together with the Company, underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) . Notwithstanding any other provision provisions of this Section 1.34, if the representative of the underwriters managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, the Initiating Holders Company shall so advise all holders of Registrable Securities that would otherwise be underwrittenHolders, and the number of securities to shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among Holders thereof in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration proportion, as provided herein does not agree nearly as practicable, to the terms respective amounts of any Registrable Securities held by such underwritingHolders; provided, such person shall be excluded therefrom by written notice from the Companyhowever, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of that securities to be included in such registration was previously reduced as statement to be offered by the Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of any Registrable Securities held by the Holders. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. If, by the withdrawal of such Registrable Securities, a result greater number of marketing factors pursuant Registrable Securities held by other Holders may be included in such registration (up to this Section 1.3(fthe limit imposed by the underwriters), the Company shall offer to all Holders or Other Stockholders holders who have retained rights to include securities included Registrable Securities in the registration the right to include additional securities Registrable Securities in the registration same proportion used in an aggregate amount equal to determining the number limitation as set forth above. Any Registrable Securities which are excluded from the underwriting by reason of securities so withdrawn, with the underwriter's marketing limitation or withdrawn from such securities to underwriting shall be allocated among withdrawn from such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofregistration.
Appears in 1 contract
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof December 20, 2001, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Initial Public OfferingCompany (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), a written request from the Holders of a majority of the Registrable Securities then outstanding that the Company effect any file a registration with respect to all or a part of statement under the Registrable SecuritiesAct, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, then the Company shall:
(i) , within ten (10) days of the receipt thereofthereof (in accordance with Section 5.5), give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within sixty ninety (6090) days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities of which the Initiating Holders as are specified request to be registered, such requests to be in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by writing and to be delivered to the Company within ten twenty (1020) days after such of mailing of the Company's written notice from the Company is given, and use commercially reasonable efforts to effect such registrationHolders.
(b) If the 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 3.2 and the Company shall include such information in the written notice referred to in subsection 3.2(a). In such event, the right of any Holder to include his Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 3.2, if the underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder.
(c) The Company is obligated to effect only one (1) such registration pursuant to this Section 3.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders 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 one hundred eighty (180) 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 (12) month period.
(e) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) 3.2 during the period starting with the date sixty (60) days prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, ; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (i) Series C, Series D and Series E Demand Rights.
(a) If Subject to the conditions of this Section 2.4, if the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof May 1, 2003 or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, a written request from the Holders representing a majority or more of the Series E Preferred Stock, the Series D Preferred Stock and Series C Preferred Stock then outstanding, aggregated as a single class (the "Initiating Holders") that the Company effect any file a registration with respect to all or a part statement under the Securities Act covering the registration of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, Securities held by Initiating Holders then the Company shall:
, within thirty (i) within ten (1030) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) , and subject to the limitations of this Section 2.4, use best efforts to effect, as soon as practicable, and the registration under the Securities Act of all such Registrable Securities that such Initiating Holders request to be registered in any event a written request received by the Company within sixty thirty (6030) days of receipt the mailing of the Company's notice pursuant to this Section 2.4.
(b) In addition, the Company shall as soon as practicable, use its best efforts to effect such requestregistration, qualification or compliance (including, without limitation, the execution of an undertaking to file a registration statement covering post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities request of other Holders any Holder joining in such request as are specified in a written request received by the Company within ten thirty (1030) days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company; provided that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.3:2.4(i)(b):
(i1) after in any particular jurisdiction in which the Company has effected two (2) would be required to execute a general consent to service of process in effecting such registrations pursuant registration, qualification or compliance unless the Company is already subject to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)Securities Act;
(ii2) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the 's estimated date of filing of, and ending on a the earlier of (x) the abandonment by the Company of the filing of, and (y) the date one hundred eighty that is six (1806) days after months immediately following the effective date of, any registration statement pertaining to securities offered by the Company (other than a Company-initiated registrationregistration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveeffective and that the Company's estimate of the date of filing such registration statement is made in good faith;
(3) after the Company has effected three (3) such registrations pursuant to this Section 2.4; or
(iii4) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders and all other Holders requesting registration hereunder a certificate certificate, signed by the President Chief Executive Officer or Secretary of the Company Company, stating that in the good faith judgment of the Board of Directors of the Company it would be materially seriously detrimental to the Company or its shareholders for such a registration statement to be filed in the near future and that it is therefore in future, then the Company's obligation to use its best interests efforts to register, qualify or comply under this Section 2.4(i) shall be deferred for a period not to exceed ninety (90) days from the date of receipt of written request from the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, Initiating Holders; provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in utilize this manner right more than once in any twelve (12) month period.
(d) The registration statement filed pursuant . Subject to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
foregoing clauses (e1) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f4), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in file a registration statement covering the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities Registrable Securities so withdrawn, with such securities requested to be allocated among such Holders registered as soon as practicable after receipt of the request or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofrequests of the Initiating Holders.
Appears in 1 contract
Requested Registration. (a) If At any time after the third anniversary of the Closing Date, each of Gellein and ▇▇▇▇▇ shall have the right to require the Company, by written request (the "Demand Request"), to effect an Underwritten Registration with respect to Registrable Shares owned by such individuals, if any, and their respective Affiliates. The Company will give prompt written notice (the "Notice of Demand Request") of such demand for an Underwritten Registration to all Holders and thereupon the Company shall, as expeditiously as reasonably practicable, file a Registration Statement relating to the registration under the Securities Act of the Registrable Shares which the Company has been so requested to register by the demanding Holder and all other Registrable Shares as to which Holders (other than the demanding Holder) shall have made a written request to the Company for registration thereof within 30 days after the Notice of Demand Request, all to the extent necessary to permit the sale or other disposition in an Underwritten Offering by such Holders of the Registrable Shares to be so registered; provided; however, that (i) if such registration is -------- ------- a Cutback Registration, the Company shall receive from Initiating Holdersregister in such registration (A) first, at any time or times after the earlier Registrable Shares proposed to be sold by Gellein and ▇▇▇▇▇ and their respective Affiliates on a pro rata basis, based upon the number of Registrable --- ---- Shares that each such party and their Affiliates originally sought to include in such registration and (iB) three (3) years after second, the date hereof or Registrable Shares proposed to be sold by each of the Holders and their respective Affiliates, other than Gellein and ▇▇▇▇▇ and their respective Affiliates, on a pro rata basis, based upon the number of --- ---- Registrable Shares that each such party and their respective Affiliates originally sought to include in such registration; and (ii) six that the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 4(a) (6A) months after within 90 days (or such other date as may be agreed between the Company, the Holders, and the managing underwriter of an Underwritten Offering of Registrable Shares) immediately following the effective date of any Registration Statement pertaining to such an Underwritten Offering; (B) if a Requested Registration has become effective under the Securities Act within the past 360 days; or (C) if the demanding Holder has requested the registration statement of a number of Registrable Shares which is less than 5% of the outstanding Common Stock or greater than 15% of the outstanding Common Stock, in each case set forth in the Company's Quarterly Report on Form 10-Q (or any successor form) for the Initial Public Offering, a written request that Company's most recently completed fiscal quarter prior to the Company effect any registration with respect to all or a part Company's receipt of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationDemand Request.
(b) The Company agrees to keep each Registration Statement filed pursuant to this Section 3 continuously effective and usable for the resale of Registrable Shares for a period of up to 90 days or until all Registrable Shares included in such Registration Statement have completed the distribution described in the Registration Statement relating thereto, whichever first occurs (the "Demand Effectiveness Period"), provided, however, that during such 90-day -------- ------- period the Company may give notice to all such Holders that the Registration Statement or the prospectus included therein is no longer usable for offers and sales of Registrable Shares, in which case the 90-day period will be tolled until such time as each such Holder and the managing underwriter of such Underwritten Offering either receives copies of a supplemented or amended prospectus or is advised in writing by the Company that use of the prospectus may be resumed (it being understood that in such case the Company shall promptly comply with its obligations under Section 6(a)).
(c) The Company, if eligible to do so, shall file a Registration Statement covering the Registrable Shares so requested to be registered on Form S-2 or S-3 or any similar short-form registration under the Securities Act as soon as reasonably practicable after the receipt of the Demand Request; provided, however, that if the managing underwriter of such Underwritten -------- ------- Offering shall advise the Company in writing that, in its opinion, the use of another form of Registration Statement is of material importance to the success of such proposed Underwritten Offering, then such Underwritten Registration shall be effected on such other form.
(d) Each of Gellein and ▇▇▇▇▇ shall be entitled to two Requested Registrations. Notwithstanding anything contained in this Section 3, if (x) the SEC has issued a stop-order as a result of actions taken by a demanding Holder or (y) a demanding Holder gives notice (the "Delaying Notice"), at any time prior to the time the Registration Statement is declared effective or prior to the last day of Demand Effectiveness Period, that such demanding Holder desires the Company to either withdraw the Registration Statement with the SEC, if the Registration Statement has been filed with the SEC, or postpone filing the Registration Statement, if the Registration Statement has not been filed with the SEC and the Company is immediately able to file the Registration Statement, then, in the case of clause (x) herein, the issuance of the stop-order, or, in the case of clause (y) herein, the Delaying Notice, shall reduce by one the number of Requested Registrations to which such demanding Holder is entitled.
(e) An Underwritten Registration requested pursuant to this Section 3 shall not be obligated deemed to effect, or have been effected unless the Registration Statement relating thereto and any post-effective amendment required to take commence the Underwritten Offering contemplated thereby has been declared effective by the SEC and maintained continuously effective for the Demand Effectiveness Period.
(f) The right of any action Holder to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate 3 shall be conditioned upon inclusion of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for Holder in the account of the Company.
(e) 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 Section 1.3(a) hereof underwriting and the Company shall include such information Holder entering into an underwriting agreement, in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be form reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
underwriting by the demanding Holder which are reasonably satisfactory to the Company. The Company shall enter an underwriting agreement with a managing underwriter or underwriters of an Underwritten Offering containing representations, warranties, indemnities and agreements customarily included (fbut not inconsistent with the agreements contained herein) Notwithstanding by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, selling holders. The Company may include securities for its own account or the account of any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion Person in such registration as provided herein does not agree to if the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the managing underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration agrees and if the number of securities to be included in so doing would not make such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofCutback Registration.
Appears in 1 contract
Requested Registration. Prior to such time as the Company has ---------------------- effected two (a2) If registrations pursuant to this Section 3.1 and such registrations have been declared or ordered effective, if the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof or (ii) six (6) months after the effective date of the registration statement for the Initial Public Offering, Holders a written request that the Company effect any registration (other than a registration on Form S-3 or any related form of registration statement) with respect to all or a part of the Registrable Securities, the Securities having an anticipated aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related offering price to the issuance) exceed public of at least one million dollars ($30,000,0001,000,000), the Company shallwill:
(ia) within ten (10) days of receipt thereof, promptly give written notice of the proposed registration to all other Holders; and
(iib) as soon as practicable, and practicable but in any event within sixty one hundred twenty (60120) days days, use its diligent best efforts to effect such registration (including, without limitation, the execution of receipt an undertaking to file post- effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all or such request, file a registration statement covering portion of such Registrable Securities of the Initiating Holders as are specified in such request, together with all or such portion of the Registrable Securities of other any Holder or Holders joining in such request as are specified in a written request received by the Company given within ten fifteen (1015) days after receipt of such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company; provided that the Company shall not be obligated to effect, or to take any action to effect, effect any such registration registration, qualification or compliance pursuant to this Section 1.33.1:
(i) after In any particular jurisdiction in which the Company has effected two (2) would be required to execute a general consent to service of process in effecting such registrations pursuant registration, qualification or com pliance unless the Company is already subject to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective service in such jurisdiction and registrations which have been withdrawn except as may be required by the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses)Securities Act;
(ii) during the period starting with the date sixty (60) days prior Prior to the Company’s good faith estimate earlier of two (2) years after the date of filing of, and ending on a date one hundred eighty this Agreement or three (1803) days after months following closing of the effective date of, a Company-initiated registration, provided that first underwritten public offering of common stock of the Company is actively employing in good faith all commercially reasonable efforts for its own account pursuant to cause such a registration statement filed under to become effectivethe Securities Act; or
(iii) if If at the Initiating Holders propose time of the request to dispose of register Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment gives notice within thirty (30) days of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and request that it is therefore in the best interests engaged or has fixed plans to engage within sixty (60) days of the Company time of the request in an initial firmly underwritten registered public offering; provided, however, that such notice may not be given more than once in any six (6) month period. Subject to defer the filing of such registration statementforegoing clauses (i) through (iii) and to Section 3.1(d), the Company shall have file a registration statement covering the right Registrable Securities so requested to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days registered as soon as practicable after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of securities to be underwritten, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(f), the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereof.
Appears in 1 contract
Requested Registration. (a) If any of Mayo, CMNY or MidMark shall notify the Company after the first anniversary of the consummation of the Initial Offering that he or it proposes to sell or transfer any of his or its Registrable Securities and requests registration thereof, the Company shall receive from Initiating Holderspromptly give notice of such request to all other Holders and comply with Section 2(b). Upon receipt of such notice, at each such Holder may elect to participate in the applicable Offering. To make such election, any time or times after such Holder must give notice to the earlier Company of such Holder's election and the number of shares of Common Stock that such Holder wishes to sell in such Offering within fifteen (i15) three (3) years after the date hereof or (ii) six (6) months after the effective date days of the registration statement for the Initial Public Offering, a written request day that the Company effect any registration with respect to all or a part of the Registrable Securities, the aggregate proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,000, the Company shall:
(i) within ten (10) days of receipt thereof, give written gave notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days of receipt of such request, file a registration statement covering such Registrable Securities . If the managing underwriter or sole underwriter of the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registration.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration Offering being registered pursuant to this Section 1.3:
(i2(a) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by advises the Holders as to which the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
(ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12) month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 Section 1.3(a) hereof and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, together with the Company, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders participating therein in writing that marketing factors require a limitation on the number of securities shares of Common Stock to be underwrittenunderwritten in such Offering, the Initiating Holders shall so advise all holders of Registrable Securities that would otherwise be underwritten, and then the number of securities to be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms shares of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders, and the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from the registration and if the number of securities to Common Stock that may be included in such Offering shall be allocated among all Holders participating in such offering in proportion, as nearly as practicable, to the respective numbers of shares of Common Stock held by or issuable to such Holders at the time of the filing of the registration was previously reduced as a result of marketing factors statement for such Offering. Any provision herein to the contrary notwithstanding, the right to request registration pursuant to this Section 1.3(f2 shall be limited to two registrations initiated by each of Mayo, CMNY and MidMark; provided, however, that (i) no such request shall require that a registration statement therefor shall become effective prior to 180 days after the effective date of a registration statement that shall have been filed by the Company covering a firm commitment underwritten Offering, if the Company shall theretofore have given notice of such registration statement to the Holders pursuant to this Section 2(a) or Section 5 and shall have pursued the preparation, filing and effectiveness of such registration statement with reasonable diligence; and (ii) the Company shall not be required to effect such a registration unless the Holder requesting registration proposes to dispose of Registrable Securities having an aggregate disposition price (before deduction of underwriting discounts and expenses of sale) of at least $1,000,000. A right to demand registration shall be deemed to have been exercised when the registration statement filed on account of such exercise has been declared effective by the Commission.
(b) Following receipt of a request pursuant to Section 2(a), the Company shall offer (i) file within 90 days a registration statement on the appropriate form under the Act for the shares of Common Stock that the Company has been requested to all register, including the shares of Common Stock of any Holder who elects to participate in response to the notice from the Company to the Holders as provided in Section 2(a); (ii) if the applicable Offering is pursuant to an underwriting agreement (the managing underwriter or Other Stockholders who have retained rights sole underwriter, as applicable, being the person selected by the Holders of more than fifty percent of the shares of Common Stock to include be registered), enter into an underwriting agreement in such form as said managing or sole underwriter shall require (which must only contain terms and conditions customary for offerings of equity securities in the registration the right to include additional securities in the registration in an aggregate amount of entities with market capitalizations that are approximately equal to the number Company's then-market capitalization and may contain customary provisions requiring the Company and the relevant Holders to indemnify and provide contribution to the underwriter or underwriters of such Offering); (iii) use its reasonable best efforts to have such registration statement declared effective as promptly as practicable and remain effective for at least 180 days; (iv) notify the relevant Holders, promptly after it has received notice thereof, of the time when such registration statement has become effective or any supplement to any prospectus forming a part of such registration statement has been filed; (v) notify the relevant Holders promptly of any request by the Commission for the amending of such registration statement or for the supplementing of any prospectus forming a part of such registration statement or for additional information; (vi) prepare and file with the Commission, promptly upon any relevant Holder's request, any amendment to such registration statement or supplement to such prospectus that, in the opinion of counsel for such Holder, may be necessary or advisable in connection with the distribution of the shares of Common Stock registered under such registration statement; (vii) prepare and promptly file with the Commission and promptly notify the Holders of the filing of such amendment to such registration statement or supplement to such prospectus as may be necessary to correct any statement or omission; (viii) in case any Holder is required to deliver a prospectus with respect to the applicable Offering at a time when the prospectus forming a part of such registration statement which is then in effect may no longer be used under the Act, prepare promptly upon request such amendment or amendments to such registration statement as may be necessary to permit compliance with the requirements of Section 5 of the Act; (ix) not file any amendment to such registration statement or supplement to such prospectus to which any relevant Holder shall reasonably object after having been furnished a copy thereof at a reasonable time prior to the filing thereof; (x) advise each applicable Holder promptly, after it has received notice or obtained knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for that purpose and promptly use its reasonable best efforts to prevent the issuance of any such stop order or to obtain its withdrawal if any such stop order shall have been issued; (xi) use its reasonable best efforts to qualify the shares of Common Stock being registered on such registration statement for sale under the securities so withdrawnlaws of such states as the relevant Holders may reasonably request, with except that it shall not be required in connection therewith or as a condition thereof to execute a general consent to service or qualify to do business in any such securities states or otherwise to subject itself to taxation therein solely because of such qualification; (xii) furnish to each applicable Holder as soon as available copies of such registration statement and each preliminary or final prospectus forming a part of such registration statement and any supplement thereto required to be allocated among prepared pursuant to this Section 2, all in such Holders quantities as such Holder may from time to time reasonably request; and (xiii) refrain from issuing or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofselling or registering for sale by any other person, during the 90-day period commencing 30 days before and ending 60 days after the effective date of such registration statement, any securities other than the shares of Common Stock registered for sale under such registration statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Clearview Cinema Group Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three (3) years after the date hereof November 1, 1999, or (ii) six (6) months after the effective date of the first registration statement for the Initial a Qualified Public Offering, a written request from the Holders of at least forty percent (40%) of the Registrable Securities then outstanding (excluding the Management Shares, for which the Management Persons shall not be entitled to initiate a request under this Section 2.2(a)), that the Company effect any file a registration with respect to all or a part statement under the Securities Act covering the registration of at least twenty percent (20%) of the Registrable SecuritiesSecurities then outstanding (excluding the Management Shares), and for which the anticipated aggregate gross proceeds of which (after deduction for underwriter’s discounts and expenses related to the issuance) Company and any selling stockholder would exceed $30,000,0005,000,000, then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
Holders (iiincluding Management Persons, who shall be entitled to request registration of the Management Shares held by them pursuant to this sentence) and shall, subject to the limitations of subsection 2.2(b), effect as soon as practicable, and in any event within sixty ninety (6090) days of the receipt of such request, file a the registration statement covering such under the Securities Act of all Registrable Securities which the Holders request to be registered within twenty (20) days of the Initiating Holders as are specified in mailing of such request, together with the Registrable Securities of other Holders joining in such request as are specified in a written request received notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 3.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by If the Holders as to which initiating the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
registration request hereunder (ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the "Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12") month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 2.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereofsubsection 2.2(a). The underwriter or underwriters shall will be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders Company and shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders. In such event, the right of any Holder to include such Holder’s 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 to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) . Notwithstanding any other provision of this Section 1.32.2, if the representative of the underwriters underwriter advises the Initiating Holders Company in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders Company shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to shares of Registrable Securities that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwritingamong all Holders thereof, such person shall be excluded therefrom by written notice from the Company, the underwriter or including the Initiating Holders, and in proportion (as nearly as practicable) to the securities so excluded shall be withdrawn from such registration. If securities are so withdrawn from amount of Registrable Securities of the registration and if Company owned by each Holder; provided, however, that the number of securities shares of Registrable Securities to be included in such registration was previously underwriting that are held by Holders other than the Management Persons shall not be reduced as a result unless all Management Shares are first entirely excluded from the underwriting; provided, further, that the number of marketing factors shares of Registrable Securities (including Management Shares) to be included in such underwriting shall not be reduced unless all other securities proposed to be sold by persons other than the Holders (including the Management Persons) and the Company are first entirely excluded from the underwriting.
(c) The Company is obligated to effect only two (2) such registrations pursuant to this Section 1.3(f)2.2 and, in any event, no more than one (1) such registration in any twelve (12) month period.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than twice in the registration in an aggregate amount equal to the number any twelve month period nor for a total of securities so withdrawn, with such securities to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofmore than 120 consecutive days.
Appears in 1 contract
Sources: Registration Rights Agreement (Giga Information Group Inc)
Requested Registration. (a) If the Company shall receive from Initiating Holders, at any time or times after the earlier of (i) three five (35) years after the date hereof April 30, 1997, or (ii) six (6) months after the effective date of the first registration statement for a public offering of securities of the Initial Public OfferingCompany (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), a written request from the Holders of forty percent (40%) of the Registrable Securities then outstanding that the Company effect any file a registration with respect to all or a part statement under the Act covering the registration of the Registrable SecuritiesSecurities then outstanding, the anticipated aggregate proceeds offering price, net of underwriting discounts and commissions, of which would exceed Seven Million Five Hundred Thousand Dollars (after deduction for underwriter’s discounts and expenses related to the issuance) exceed $30,000,0007,500,000), then the Company shall:
(i) , within ten (10) days of the receipt thereof, give written notice of the proposed registration such request to all other Holders; and
(ii) Holders and shall, subject to the limitations of subsection 3.2(b), use its best efforts to effect as soon as practicable, and in any event within sixty ninety (6090) days of the receipt of such request, file a the registration statement covering such under the Act of all Registrable Securities of which the Initiating Holders as are specified in such request, together with the Registrable Securities of other Holders joining in such request as are specified to be registered in a written request received given within twenty (20) days of the mailing of such notice by the Company within ten (10) days after such written notice from the Company is given, and use commercially reasonable efforts to effect such registrationin accordance with Section 5.5.
(b) The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(i) after the Company has effected two (2) such registrations pursuant to this Section 1.3 (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by If the Holders as to which initiating the Holders have not elected to bear the Registration Expenses pursuant to Section 1.6 hereof and would, absent such election, have been required to bear such expenses);
registration request hereunder (ii) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iii) if the Initiating Holders propose to dispose of Registrable Securities which may be registered on Form S-3 pursuant to a request made under Section 1.5 hereof.
(c) If the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, the Company shall have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that the Company may not defer such filing for a period of more than one hundred twenty (120) days after receipt of the request of the "Initiating Holders. The Company may not defer its obligation in this manner more than once in any twelve (12") month period.
(d) The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Section 1.14 hereof, include Other Shares held by Other Stockholders and may include securities of the Company being sold for the account of the Company.
(e) 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 1.3(a) hereof 3.2 and the Company shall include such information in the written notice referred to in Section 1.3(a) hereof. The underwriter or underwriters shall be selected by Initiating Holders holding a majority of the Registrable Securities held by all Initiating Holders and shall be reasonably acceptable to the Companysubsection 3.2(a). In such event, the right of any Holder to include such Holder’s 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 securities through such underwriting shall, shall (together with the Company, Company as provided in subsection 3.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(f) underwriting by a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 1.33.2, if the representative of the underwriters underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of securities shares to be underwritten, then the Initiating Holders shall so advise all holders Holders of Registrable Securities that which would otherwise be underwrittenunderwritten pursuant hereto, and the number of securities to shares of Registrable Securities that may be included in the underwriting shall be allocated in accordance with Section 1.14 hereof. If a person who has requested inclusion in such registration as provided herein does not agree to the terms of any such underwritingamong all Holders thereof, such person shall be excluded therefrom by written notice from the Company, the underwriter or including the Initiating Holders, and in proportion (as nearly as practicable) to the securities so excluded shall be withdrawn from amount of Registrable Securities of the Company owned by each Holder.
(c) The Company is obligated to effect only two (2) such registration. If securities are so withdrawn from the registration and if the number of securities to be included in such registration was previously reduced as a result of marketing factors registrations pursuant to this Section 1.3(f3.2; provided, however, that the Company shall be obligated to effect one additional registration pursuant to this Section 3.2 if the Company fails to qualify for use of Form S-3 under the Securities Act within twelve (12) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction).
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 3.2, a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall offer to all Holders or Other Stockholders who have retained rights to include securities in the registration the right to include additional securities defer such filing for a period of not more than ninety (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 (12) month period.
(e) Notwithstanding the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any such registration in an aggregate amount equal pursuant to this Section 3.2 during the period starting with the date sixty (60) days prior to the number Company's good faith estimate of securities so withdrawnthe date of filing of, with and ending on a date one hundred eighty (180) days after the effective date of, a Company- initiated registration; provided the Company is actively employing in good faith all reasonable efforts to cause such securities registration statement to be allocated among such Holders or Other Stockholders requesting additional inclusion in accordance with Section 1.14 hereofbecome effective.
Appears in 1 contract
Sources: Rights Agreement (Ramp Networks Inc)