Shelf Registrations. (a) If at such time the Company qualifies for the use of Form S-3 promulgated under the Securities Act or any successor form thereto to file a “shelf” registration statement pursuant to Rule 415 under the Securities Act on Form S-3 (or any successor form to Form S-3, or any similar short-form registration statement) (a “Shelf Registration”), upon receipt of a written request (any such request, a “Shelf Request”) from any Investor that the Company file a Shelf Registration covering the resale of such Investor’s Registrable Securities, the Company shall (i) within two (2) Business Days of the receipt by the Company of such notice (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”), give written notice of such proposed Shelf Registration to any non-requesting Investor(s), (ii) use its commercially reasonable efforts, consistent with the terms of this Agreement, to cause the Shelf Registration to be filed with the SEC as soon as reasonably practicable and to include all Registrable Securities held by such requesting Investor to be registered on such form for the offering together with all or such portion of the Registrable Securities of any non-requesting Investor joining in such Shelf Request as are specified in a written request received by the Company within two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) after receipt of such written notice from the Company, and (iii) use its commercially reasonable efforts, consistent with the terms of this Agreement, to cause such Shelf Registration to be declared effective by the SEC as promptly as practicable. As soon as reasonably practicable after the Initial Public Offering, but in any event within 6 months following consummation of the Initial Public Offering, the Company will use its commercially reasonable efforts, consistent with the terms of this Agreement, to qualify for and remain eligible to use Form S-3 registration or a similar short-form registration. (b) The Company will use commercially reasonable efforts, consistent with the terms of this Agreement, to keep the Shelf Registration continuously effective under the Securities Act in order to permit the relevant prospectus forming part of the Shelf Registration to be usable by the relevant Holders until the earlier of: (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration or another registration statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder); and (ii) the date as of which no Holder holds Registrable Securities (such period of effectiveness, the “Shelf Period”). The Company shall be deemed not to have used commercially reasonable efforts to keep the Shelf Registration effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in Holders of the Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to the Shelf Registration during the Shelf Period, unless such action or omission is required by applicable law. To the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company files any Shelf Registration, the Company shall include in such Shelf Registration such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such Shelf Registration at a later time through the filing of a prospectus supplement rather than a post-effective amendment. (c) In connection with any proposed firmly underwritten resale of Registrable Securities which is not pursuant to a Demand Registration under SECTION 2.1 and with respect to which such Shelf Registration is expressly being utilized to effect such resale (an “Underwritten Shelf Take-down”) pursuant to a Shelf Registration, each Investor agrees, in an effort to conduct any such Underwritten Shelf Take-Down in the most efficient and organized manner, to coordinate with any other Investor(s) prior to initiating any sales efforts and cooperate with the other Investor(s) as to the terms of such Underwritten Shelf Take-Down, including the aggregate amount of securities to be sold and the number of Registrable Securities to be sold by each Investor. In furtherance of the foregoing, the Company shall give prompt notice to any non-initiating Investor (if such Investor’s Registrable Securities are included in the Shelf Registration) of the receipt of a request from the initiating Investor (whose Registrable Securities are included in the Shelf Registration) of a proposed Underwritten Shelf Take-Down under and pursuant to the Shelf Registration and, notwithstanding anything to the contrary contained herein, will provide such non-initiating Investor a period of two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) to participate in such Underwritten Shelf Take-Down, subject to the terms negotiated by and applicable to the initiating Investor and subject to the “cutback” limitations set forth in SECTION 2.1(d) and the deferral provisions set forth in SECTION 2.1(e) as if the subject Underwritten Shelf Take-Down was being effected pursuant to a Demand Registration (mutatis mutandis). All such Investors electing to be included in an Underwritten Shelf Take-down must sell their Registrable Securities to the Underwriters selected as provided in SECTION 2.5(f) on the same terms and conditions as apply to any other selling equityholders; provided, however, that each such non-initiating Investor may condition its participation in the Underwritten Shelf Take-down being completed within ten (10) Business Days of its acceptance at a price per share (after giving effect to any underwriters’ discounts or commissions) to such non-initiating Investor of not less than ninety percent (90%) (or such lesser percentage specified by such non-initiating Investor) of the closing price for the shares on their principal trading market on the Business Day immediately prior to such non-initiating Investor’s election to participate; provided, further, however, that no such Person shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Person as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, however, that such liability will be limited to the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration. (d) Notwithstanding anything to the contrary contained herein, the Company shall have no obligation to effect an Underwritten Shelf Take-down, if the proposed Underwritten Shelf Take-down would not reasonably be expected to result in aggregate gross cash proceeds to the participating Holders and any other holders of any other securities of entitled to inclusion in such registration, in excess of $50 million (before deducting expenses and Underwriters’ discounts and commissions), and such request shall not constitute an Underwritten Shelf Take-down Registration for any purpose under this Agreement. (e) The provisions of this SECTION 2.2 shall be applicable to each take-down from a Shelf Registration initiated under this SECTION 2.2 and any subsequent resale of Registrable Securities pursuant thereto. SECTION
Appears in 1 contract
Shelf Registrations. (a) If In addition to the rights contained in Section 2.1(a), the Holders shall have the right, at such any time that the Company qualifies for the use of Form S-3 promulgated under the Securities Act or any successor form thereto is legally eligible to file a Shelf Registration Statement, to request registrations on a Shelf Registration Statement (each such right, a “shelf” Shelf Right”); provided, that each registration statement made pursuant to Rule 415 under a Shelf Right must include Registrable Securities in an amount not less than the Minimum Demand Amount. Notwithstanding the foregoing, to the extent the Initiating Holders do not include any Initial Advent Holders or Initial ▇▇▇▇▇▇ Holders, then such Initiating Holders shall only have a Shelf Right if they beneficially own 20% or more of the outstanding Registrable Securities Act on Form S-3 beneficially owned by all Holders. Subject to Section 2.1(d), if the Company shall receive a Request specifying a registration pursuant to a Shelf Right, the Company shall file with the SEC, as expeditiously as reasonably possible after the initiation of a Shelf Right, a Shelf Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof from time to time (or any successor form to Form S-3each such registration, or any similar short-form registration statement) (a “Shelf Registration”), upon receipt ) in accordance with the methods of a written request (any distribution elected by such request, a “Shelf Request”) from any Investor that the Company file a Shelf Registration covering the resale of such Investor’s Registrable Securities, the Company Holders and shall (i) within two (2) Business Days of the receipt by the Company of such notice (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”), give written notice of such proposed Shelf Registration to any non-requesting Investor(s), (ii) use its commercially reasonable efforts, consistent with the terms of this Agreement, to cause the Shelf Registration to be filed with the SEC as soon as reasonably practicable and to include all Registrable Securities held by such requesting Investor to be registered on such form for the offering together with all or such portion of the Registrable Securities of any non-requesting Investor joining in such Shelf Request as are specified in a written request received by the Company within two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) after receipt of such written notice from the Company, and (iii) use its commercially reasonable efforts, consistent with the terms of this Agreement, best efforts to cause such Shelf Registration Statement to be declared effective by the SEC as promptly as practicable. As soon as reasonably practicable after the Initial Public Offering, but in any event within 6 months following consummation of the Initial Public Offering, the Company will use its commercially reasonable efforts, consistent with the terms of this Agreement, to qualify for and remain eligible to use Form S-3 registration or a similar short-form registration.
(b) The Company will use commercially reasonable efforts, consistent with the terms of this Agreement, to keep the Shelf Registration continuously effective under the Securities Act in order to permit the relevant prospectus forming part of the Shelf Registration to be usable by the relevant Holders until the earlier of: (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration or another registration statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder); and (ii) the date expeditiously as of which no Holder holds Registrable Securities (such period of effectiveness, the “Shelf Period”)reasonably possible thereafter. The Company shall be deemed not to have used commercially reasonable use its best efforts to keep the Shelf Registration Statement continuously effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in Holders of the Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to the Shelf Registration during the Shelf Period, unless such action or omission is required by applicable law. To the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company files any Shelf Registration, the Company shall include in such Shelf Registration such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that permit the Holders may be added to such Shelf Registration at Prospectus forming a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(c) In connection with any proposed firmly underwritten resale of Registrable Securities which is not pursuant to a Demand Registration under SECTION 2.1 and with respect to which such Shelf Registration is expressly being utilized to effect such resale (an “Underwritten Shelf Take-down”) pursuant to a Shelf Registration, each Investor agrees, in an effort to conduct any such Underwritten Shelf Take-Down in the most efficient and organized manner, to coordinate with any other Investor(s) prior to initiating any sales efforts and cooperate with the other Investor(s) as to the terms of such Underwritten Shelf Take-Down, including the aggregate amount of securities part thereof to be sold and usable by the number of Registrable Securities to be sold by each Investor. In furtherance of the foregoingHolders, the Company shall give prompt notice to underwriters and any non-initiating Investor (if such Investor’s Registrable Securities are included in brokers or dealers during the Shelf Registration) of the receipt of a request from the initiating Investor (whose Registrable Securities are included in the Shelf Registration) of a proposed Underwritten Shelf Take-Down under and pursuant to the Shelf Registration and, notwithstanding anything to the contrary contained herein, will provide such non-initiating Investor a period of two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) to participate in such Underwritten Shelf Take-Down, subject to the terms negotiated by and applicable to the initiating Investor and subject to the “cutback” limitations set forth in SECTION 2.1(d) and the deferral provisions set forth in SECTION 2.1(e) as if the subject Underwritten Shelf Take-Down was being effected pursuant to a Demand Registration (mutatis mutandisSection 2.1(g). All such Investors electing to be included in an Underwritten Shelf Take-down must sell their Registrable Securities to the Underwriters selected as provided in SECTION 2.5(f) on the same terms and conditions as apply to any other selling equityholders; provided, however, that each such non-initiating Investor may condition its participation in the Underwritten Shelf Take-down being completed within ten (10) Business Days of its acceptance at a price per share (after giving effect to any underwriters’ discounts or commissions) to such non-initiating Investor of not less than ninety percent (90%) (or such lesser percentage specified by such non-initiating Investor) of the closing price for the shares on their principal trading market on the Business Day immediately prior to such non-initiating Investor’s election to participate; provided, further, however, that no such Person shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Person as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, however, that such liability will be limited to the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration.
(d) Notwithstanding anything to the contrary contained herein, the Company shall have no obligation to effect an Underwritten Shelf Take-down, if the proposed Underwritten Shelf Take-down would not reasonably be expected to result in aggregate gross cash proceeds to the participating Holders and any other holders of any other securities of entitled to inclusion in such registration, in excess of $50 million (before deducting expenses and Underwriters’ discounts and commissions), and such request shall not constitute an Underwritten Shelf Take-down Registration for any purpose under this Agreement.
(e) The provisions of this SECTION 2.2 shall be applicable to each take-down from a Shelf Registration initiated under this SECTION 2.2 and any subsequent resale of Registrable Securities pursuant thereto. SECTION
Appears in 1 contract
Sources: Registration Rights Agreement (Lululemon Athletica Inc.)
Shelf Registrations. (a) If In addition to the rights contained in Section 2.1(a), the Holders who beneficially own a majority of the outstanding Registrable Securities beneficially owned by all Holders shall have the right, at such any time that the Company qualifies for the use of Form S-3 promulgated under the Securities Act or any successor form thereto is legally eligible to file a Shelf Registration Statement, to request registrations on a Shelf Registration Statement (each such right, a “shelf” Shelf Right”); provided, that each registration statement made pursuant to Rule 415 under a Shelf Right must include Registrable Securities in an amount not less than the Minimum Demand Amount. Subject to Section 2.1(d), if the Company shall receive a Request specifying a registration pursuant to a Shelf Right, the Company shall file with the SEC, as expeditiously as reasonably possible after the initiation of a Shelf Right, a Shelf Registration Statement relating to the offer and sale of the Registrable Securities Act on Form S-3 requested to be included therein by the Holders thereof from time to time (or any successor form to Form S-3each such registration, or any similar short-form registration statement) (a “Shelf Registration”), upon receipt ) in accordance with the methods of a written request (any distribution elected by such request, a “Shelf Request”) from any Investor that the Company file a Shelf Registration covering the resale of such Investor’s Registrable Securities, the Company Holders and shall (i) within two (2) Business Days of the receipt by the Company of such notice (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”), give written notice of such proposed Shelf Registration to any non-requesting Investor(s), (ii) use its commercially reasonable efforts, consistent with the terms of this Agreement, to cause the Shelf Registration to be filed with the SEC as soon as reasonably practicable and to include all Registrable Securities held by such requesting Investor to be registered on such form for the offering together with all or such portion of the Registrable Securities of any non-requesting Investor joining in such Shelf Request as are specified in a written request received by the Company within two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) after receipt of such written notice from the Company, and (iii) use its commercially reasonable efforts, consistent with the terms of this Agreement, best efforts to cause such Shelf Registration Statement to be declared effective by the SEC as promptly as practicable. As soon as reasonably practicable after the Initial Public Offering, but in any event within 6 months following consummation of the Initial Public Offering, the Company will use its commercially reasonable efforts, consistent with the terms of this Agreement, to qualify for and remain eligible to use Form S-3 registration or a similar short-form registration.
(b) The Company will use commercially reasonable efforts, consistent with the terms of this Agreement, to keep the Shelf Registration continuously effective under the Securities Act in order to permit the relevant prospectus forming part of the Shelf Registration to be usable by the relevant Holders until the earlier of: (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration or another registration statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder); and (ii) the date expeditiously as of which no Holder holds Registrable Securities (such period of effectiveness, the “Shelf Period”)reasonably possible thereafter. The Company shall be deemed not to have used commercially reasonable use its best efforts to keep the Shelf Registration Statement continuously effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in Holders of the Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to the Shelf Registration during the Shelf Period, unless such action or omission is required by applicable law. To the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company files any Shelf Registration, the Company shall include in such Shelf Registration such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that permit the Holders may be added to such Shelf Registration at Prospectus forming a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(c) In connection with any proposed firmly underwritten resale of Registrable Securities which is not pursuant to a Demand Registration under SECTION 2.1 and with respect to which such Shelf Registration is expressly being utilized to effect such resale (an “Underwritten Shelf Take-down”) pursuant to a Shelf Registration, each Investor agrees, in an effort to conduct any such Underwritten Shelf Take-Down in the most efficient and organized manner, to coordinate with any other Investor(s) prior to initiating any sales efforts and cooperate with the other Investor(s) as to the terms of such Underwritten Shelf Take-Down, including the aggregate amount of securities part thereof to be sold and usable by the number of Registrable Securities to be sold by each Investor. In furtherance of the foregoingHolders, the Company shall give prompt notice to underwriters and any non-initiating Investor (if such Investor’s Registrable Securities are included in brokers or dealers during the Shelf Registration) of the receipt of a request from the initiating Investor (whose Registrable Securities are included in the Shelf Registration) of a proposed Underwritten Shelf Take-Down under and pursuant to the Shelf Registration and, notwithstanding anything to the contrary contained herein, will provide such non-initiating Investor a period of two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) to participate in such Underwritten Shelf Take-Down, subject to the terms negotiated by and applicable to the initiating Investor and subject to the “cutback” limitations set forth in SECTION 2.1(d) and the deferral provisions set forth in SECTION 2.1(e) as if the subject Underwritten Shelf Take-Down was being effected pursuant to a Demand Registration (mutatis mutandisSection 2.1(g). All such Investors electing to be included in an Underwritten Shelf Take-down must sell their Registrable Securities to the Underwriters selected as provided in SECTION 2.5(f) on the same terms and conditions as apply to any other selling equityholders; provided, however, that each such non-initiating Investor may condition its participation in the Underwritten Shelf Take-down being completed within ten (10) Business Days of its acceptance at a price per share (after giving effect to any underwriters’ discounts or commissions) to such non-initiating Investor of not less than ninety percent (90%) (or such lesser percentage specified by such non-initiating Investor) of the closing price for the shares on their principal trading market on the Business Day immediately prior to such non-initiating Investor’s election to participate; provided, further, however, that no such Person shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Person as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, however, that such liability will be limited to the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration.
(d) Notwithstanding anything to the contrary contained herein, the Company shall have no obligation to effect an Underwritten Shelf Take-down, if the proposed Underwritten Shelf Take-down would not reasonably be expected to result in aggregate gross cash proceeds to the participating Holders and any other holders of any other securities of entitled to inclusion in such registration, in excess of $50 million (before deducting expenses and Underwriters’ discounts and commissions), and such request shall not constitute an Underwritten Shelf Take-down Registration for any purpose under this Agreement.
(e) The provisions of this SECTION 2.2 shall be applicable to each take-down from a Shelf Registration initiated under this SECTION 2.2 and any subsequent resale of Registrable Securities pursuant thereto. SECTION
Appears in 1 contract
Sources: Registration Rights Agreement (Lululemon Athletica Inc.)
Shelf Registrations. (aAt any time that a Shelf Registration is effective, if any holder or group of holders described in Section 3(a) If at such time of Registrable Shares delivers a notice to the Company qualifies for the use of Form S-3 promulgated under the Securities Act or any successor form thereto to file a “shelf” registration statement pursuant to Rule 415 under the Securities Act on Form S-3 (or any successor form to Form S-3, or any similar short-form registration statement) (a “Shelf Registration”), upon receipt of a written request (any such request, a “Shelf RequestTake-Down Notice”) from any Investor stating that the Company file a Shelf Registration covering the resale of such Investor’s Registrable Securities, the Company shall (i) within two (2) Business Days of the receipt by the Company of such notice (or such shorter period as may be reasonably requested in connection with it intends to effect an underwritten “block trade”), give written notice offering or distribution of such proposed Shelf Registration to any non-requesting Investor(s), (ii) use all or part of its commercially reasonable efforts, consistent with the terms of this Agreement, to cause Registrable Shares included by it on the Shelf Registration to be filed with the SEC as soon as reasonably practicable and to include all Registrable Securities held by such requesting Investor to be registered on such form for the offering together with all or such portion of the Registrable Securities of any non-requesting Investor joining in such Shelf Request as are specified in a written request received by the Company within two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) after receipt of such written notice from the Company, and (iii) use its commercially reasonable efforts, consistent with the terms of this Agreement, to cause such Shelf Registration to be declared effective by the SEC as promptly as practicable. As soon as reasonably practicable after the Initial Public Offering, but in any event within 6 months following consummation of the Initial Public Offering, the Company will use its commercially reasonable efforts, consistent with the terms of this Agreement, to qualify for and remain eligible to use Form S-3 registration or a similar short-form registration.
(b) The Company will use commercially reasonable efforts, consistent with the terms of this Agreement, to keep the Shelf Registration continuously effective under the Securities Act in order to permit the relevant prospectus forming part of the Shelf Registration to be usable by the relevant Holders until the earlier of: (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration or another registration statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder); and (ii) the date as of which no Holder holds Registrable Securities (such period of effectiveness, the “Shelf Period”). The Company shall be deemed not to have used commercially reasonable efforts to keep the Shelf Registration effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in Holders of the Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to the Shelf Registration during the Shelf Period, unless such action or omission is required by applicable law. To the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company files any Shelf Registration, the Company shall include in such Shelf Registration such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such Shelf Registration at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(c) In connection with any proposed firmly underwritten resale of Registrable Securities which is not pursuant to a Demand Registration under SECTION 2.1 and with respect to which such Shelf Registration is expressly being utilized to effect such resale (an “Underwritten Shelf Take-downOffering”) and stating the number of the Registrable Shares to be included in the Underwritten Shelf Offering, then the Company shall amend or supplement the Shelf Registration as may be necessary in order to enable such Registrable Shares to be distributed pursuant to a Shelf Registration, each Investor agrees, in an effort to conduct any such the Underwritten Shelf Offering (taking into account the inclusion of Registrable Shares by any other holders thereof pursuant to this Section 3(c)). In connection with any Underwritten Shelf Offering, the Company shall, promptly after receipt of a Take-Down in the most efficient and organized mannerNotice, deliver such notice to coordinate with any all other Investor(s) prior to initiating any sales efforts and cooperate with the other Investor(s) as to the terms of such Underwritten Shelf Take-Down, including the aggregate amount of securities to be sold and the number holders of Registrable Securities to be sold by each Investor. In furtherance of the foregoing, the Company shall give prompt notice to any non-initiating Investor (if Shares included on such Investor’s Registrable Securities are included in the Shelf Registration) of the receipt of a request from the initiating Investor (whose Registrable Securities are included in the Shelf Registration) of a proposed Underwritten Shelf Take-Down under and pursuant to the Shelf Registration and, notwithstanding anything to the contrary contained herein, will provide such non-initiating Investor a period of two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) to participate in such Underwritten Shelf Take-Down, subject to the terms negotiated by and applicable Section 2(d) permit each holder to the initiating Investor and subject to the “cutback” limitations set forth in SECTION 2.1(d) and the deferral provisions set forth in SECTION 2.1(e) as if the subject Underwritten Shelf Take-Down was being effected pursuant to a Demand Registration (mutatis mutandis). All such Investors electing to be include its Registrable Shares included in an Underwritten Shelf Take-down must sell their Registrable Securities to the Underwriters selected as provided in SECTION 2.5(f) on the same terms Shelf Registration and conditions as apply permit each holder to any other selling equityholders; provided, however, that each such non-initiating Investor may condition include its participation Registrable Shares included on the Shelf Registration in the Underwritten Shelf Offering if such holder notifies the proposing holders and the Company within three business days after delivery of the Take-down being completed within ten (10) Business Days of its acceptance at a price per share (after giving effect to any underwriters’ discounts or commissions) Down Notice to such non-initiating Investor of not less than ninety percent (90%) (or such lesser percentage specified by such non-initiating Investor) of the closing price for the shares on their principal trading market on the Business Day immediately prior to such non-initiating Investor’s election to participate; provided, further, however, that no such Person shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Person as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, however, that such liability will be limited to the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registrationholder.
(d) Notwithstanding anything to the contrary contained herein, the Company shall have no obligation to effect an Underwritten Shelf Take-down, if the proposed Underwritten Shelf Take-down would not reasonably be expected to result in aggregate gross cash proceeds to the participating Holders and any other holders of any other securities of entitled to inclusion in such registration, in excess of $50 million (before deducting expenses and Underwriters’ discounts and commissions), and such request shall not constitute an Underwritten Shelf Take-down Registration for any purpose under this Agreement.
(e) The provisions of this SECTION 2.2 shall be applicable to each take-down from a Shelf Registration initiated under this SECTION 2.2 and any subsequent resale of Registrable Securities pursuant thereto. SECTION
Appears in 1 contract
Sources: Registration Rights Agreement (Ladder Capital Corp)
Shelf Registrations. (a) If at such time the Company qualifies for the use of Form S-3 promulgated under the Securities Act or any successor form thereto to file a “shelf” registration statement pursuant to Rule 415 under the Securities Act on Form S-3 (or any successor form to Form S-3, or any similar short-form registration statement) (a “Shelf Registration”), upon receipt of a written request (any such request, a “Shelf Request”) from any Investor that the Company file a Shelf Registration covering the resale of such Investor’s Registrable Securities, the Company shall (i) within two (2) Business Days of the receipt by the Company of such notice (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”), give written notice of such proposed Shelf Registration Subject to any non-requesting Investor(s), (ii) use its commercially reasonable efforts, consistent with the terms of this Agreement, commencing on the date on which the Company becomes eligible to register securities issued by it in the IPO on a registration statement on Form S-3 or similar short-form registration, the Company shall use its reasonable best efforts to effect, as expeditiously as possible, the filing of a shelf registration statement on Form S-3 pursuant to Rule 415 with respect to the Registrable Securities (including the prospectus, amendments and supplements to the shelf registration statement or prospectus, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed incorporated by reference, if any, in such shelf registration statement, the “Shelf Registration Statement”).
(ii) The Company shall use its reasonable best efforts to cause the Shelf Registration to be filed with the SEC as soon as reasonably practicable and to include all Registrable Securities held by such requesting Investor to be registered on such form for the offering together with all or such portion of the Registrable Securities of any non-requesting Investor joining in such Shelf Request as are specified in a written request received by the Company within two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) after receipt of such written notice from the Company, and (iii) use its commercially reasonable efforts, consistent with the terms of this Agreement, to cause such Shelf Registration Statement to be declared effective by the SEC Commission as promptly as practicable. As soon as reasonably practicable after the Initial Public Offeringsuch filing, but in any event within 6 months following consummation of the Initial Public Offering, the Company will and shall use its commercially reasonable efforts, consistent with the terms of this Agreement, to qualify for and remain eligible to use Form S-3 registration or a similar short-form registration.
(b) The Company will use commercially reasonable efforts, consistent with the terms of this Agreement, to keep the Shelf Registration continuously effective under the Securities Act in order to permit the relevant prospectus forming part of the Shelf Registration to be usable by the relevant Holders until the earlier of: (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration or another registration statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder); and (ii) the date as of which no Holder holds Registrable Securities (such period of effectiveness, the “Shelf Period”). The Company shall be deemed not to have used commercially reasonable best efforts to keep the Shelf Registration Statement effective during and updated, from the date such Shelf Period if Registration Statement is declared effective until the Company voluntarily takes any action or omits to take any action that would result in Holders first date as of which all of the shares of Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to included in the Shelf Registration during Statement have been sold. If the Shelf PeriodRegistration Statement has been outstanding at least three years, unless such action or omission is required by applicable law. To at the extent end of the Company is eligible third year, if any securities registered under the relevant provisions of Rule 430B under the Securities Act, if the Company files any previous Shelf RegistrationRegistration Statement remain unsold, the Company shall include in such Shelf Registration such disclosures as may be required by Rule 430B under the Securities Act (referring use its reasonable best efforts to the unnamed selling security holders in promptly refile a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such Shelf Registration at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(c) In connection with any proposed firmly underwritten resale of Registrable Securities which is not new shelf registration statement on Form S-3 pursuant to a Demand Registration under SECTION 2.1 and with respect to which such Shelf Registration is expressly being utilized to effect such resale (an “Underwritten Shelf Take-down”) pursuant to a Shelf Registration, each Investor agrees, in an effort to conduct any such Underwritten Shelf Take-Down in Rule 415 covering the most efficient and organized manner, to coordinate with any other Investor(s) prior to initiating any sales efforts and cooperate with the other Investor(s) as to the terms of such Underwritten Shelf Take-Down, including the aggregate amount of securities to be sold and the number of Registrable Securities to be sold by each Investor. In furtherance of the foregoing, the Company shall give prompt notice to any non-initiating Investor (if such Investor’s Registrable Securities are included in the Shelf Registration) of the receipt of a request from the initiating Investor (whose Registrable Securities are included in the Shelf Registration) of a proposed Underwritten Shelf Take-Down under and pursuant to the Shelf Registration and, notwithstanding anything to the contrary contained herein, will provide such non-initiating Investor a period of two (2) Business Days (or such shorter period as may be reasonably requested in connection with an underwritten “block trade”) to participate in such Underwritten Shelf Take-Down, subject to the terms negotiated by and applicable to the initiating Investor and subject to the “cutback” limitations set forth in SECTION 2.1(d) and the deferral provisions set forth in SECTION 2.1(e) as if the subject Underwritten Shelf Take-Down was being effected pursuant to a Demand Registration (mutatis mutandis). All such Investors electing to be included in an Underwritten Shelf Take-down must sell their Registrable Securities to the Underwriters selected as provided in SECTION 2.5(f) on the same terms and conditions as apply to any other selling equityholders; provided, however, that each such non-initiating Investor may condition its participation in the Underwritten Shelf Take-down being completed within ten (10) Business Days of its acceptance at a price per share (after giving effect to any underwriters’ discounts or commissions) to such non-initiating Investor of not less than ninety percent (90%) (or such lesser percentage specified by such non-initiating Investor) of the closing price for the shares on their principal trading market on the Business Day immediately prior to such non-initiating Investor’s election to participate; provided, further, however, that no such Person shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Person as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, however, that such liability will be limited to the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration.
(d) Notwithstanding anything to the contrary contained herein, the Company shall have no obligation to effect an Underwritten Shelf Take-down, if the proposed Underwritten Shelf Take-down would not reasonably be expected to result in aggregate gross cash proceeds to the participating Holders and any other holders of any other securities of entitled to inclusion in such registration, in excess of $50 million (before deducting expenses and Underwriters’ discounts and commissions), and such request shall not constitute an Underwritten Shelf Take-down Registration for any purpose under this Agreement.
(e) The provisions of this SECTION 2.2 shall be applicable to each take-down from a Shelf Registration initiated under this SECTION 2.2 and any subsequent resale of Registrable Securities pursuant thereto. SECTION
Appears in 1 contract