Common use of Shelf Takedowns Clause in Contracts

Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), upon the written request of the Demand Party at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering.

Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), upon the written request of the Demand Party at any time and from time to time, the Company will shall facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will shall file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party Sponsor Holders shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Non- Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering. Notwithstanding the foregoing, the Company shall not be obligated to facilitate a “takedown” under this Section 2.2(f) if, in the good faith judgment of the Board, the Company is in possession of material non-public information the disclosure of which would be materially adverse to the Company and would not otherwise be required under Law, in which case the filing of the applicable prospectus or prospectus supplement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 60th day after receipt by the Company of the written request from a Demand Party to effect the takedown under this Section 2.2(f); provided that the number of any such delays or any delay pursuant to Section 2.2(a)(z) or 2.2(h) shall not exceed two in any twelve (12) month period.

Shelf Takedowns. Subject to At any time when a Shelf Registration statement is effective and its use has not been suspended by the expiration or waiver of any applicable lockup Company pursuant to Section 2.4(d2(c), upon the written request of demand (a “Takedown Demand”) by any Equity Holder that is a Shelf Participant holding Registrable Shares at such time (the Demand Party at any time and from time to time“Initiating Equity Holder”), the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down shares off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters Shelf Registration; provided that (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, i) subject to the limitations set forth in Section 2.2(e)2(a)(ii)(4) and Section 2(a)(ii)(5) hereof, the Equity Holders shall have the right to make no more than four (4) Takedown Demands and/or Demand Party Registrations in any twelve (12) month period, (ii) shall permit each have the right to make an unlimited number of Takedown Demands and/or Demand Registrations, but only one in any calendar quarter, (iii) the Company shall not be obligated to effect a Marketed Underwritten Takedown Offering unless the shares requested to be sold in such Non-Sponsor offering have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $10,000,000 (net of expected underwriting discounts and commissions); and (iv) the Company will provide (x) in connection with any Overnight Underwritten Takedown Offering at least two (2) business days’ notice to any Eligible Holder (other than the Initiating Equity Holder) that is a Shelf Participant and that is a member of the Snow ▇▇▇▇▇▇ Group or the TOBI Group or other Equity Holder or is a director or executive officer of the Company, and (y) in connection with any Marketed Underwritten Takedown Offering, at least five (5) business days’ notice to include all or any Eligible Holder (other than the Initiating Equity Holder) that is a portion Shelf Participant. If any Shelf Participants entitled to receive a notice pursuant to clause (iv) of its Registrable Securities the preceding sentence request inclusion of their Eligible Shares (by notice to the Company, which notice must be received by the Company no later than (A) in the case of an Overnight Underwritten Takedown Offering, the business day following the date notice is given to such participant or (B) in the case of a Marketed Underwritten Shelf Takedown Offering, three (3) calendar days following the date notice is given to such participant) the Company shall include such shares in the Underwritten Takedown Offering so long as such participants agree to be bound by the applicable provisions of this Section 2; provided that (1) the Initiating Equity Holder shall maintain the right to select the underwriter(s) or managing underwriter(s) for such offering and (2) if such Non-Sponsor Holder notifies managing underwriter(s) determines that marketing factors require a limitation on the Demand Party number of shares to be underwritten, the managing underwriter(s) may limit the number of shares proposed to be included in such offering such that the number of Eligible Shares to be included shall be determined in the manner set forth in Section 2(c). The Shelf Participants participating in such offering and the Company within two days after delivery shall enter into an underwriting agreement in customary form with the underwriter or underwriters of such offering. Any Shelf Participant who has requested inclusion in such Underwritten Takedown Offering as provided above (including the Initiating Equity Holder) may elect to withdraw therefrom at any time prior to the consummation of the demand request takedown by written notice to the Company, the managing underwriter(s) and the Initiating Equity Holder; provided that, if the Company’s counsel or underwriters’ counsel reasonably determines that such Non-Sponsor withdrawal would require a recirculation of the prospectus, then no Eligible Holder of its election shall have the right to participate (which election shall specify withdraw unless the number of Registrable Securities intended Initiating Equity Holder has elected to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offeringwithdraw.

Shelf Takedowns. Subject to the expiration or waiver provisions of any applicable lockup pursuant to Section 2.4(d)2(c) hereof, upon the written request of the Demand Party CD&R Stockholders shall be entitled, at any time and from time to timetime when a Shelf Registration Statement is effective, the Company will facilitate in the manner described in this Agreement to sell such Registrable Securities held by them as are then registered pursuant to a Shelf Registration Statement (each, a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statementShelf Takedown”). Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the The number of Shelf Takedowns that the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right CD&R Stockholders may effect pursuant to this Section 2.2(f2(b) shall not be limited, provided that the number of Underwritten Offerings that may be effected hereunder shall be limited to a total of three (3) (less any Demand Requests made pursuant to Section 2(e)), with only two (2) such Underwritten Offerings where the contemplated plan of distribution includes contemplates a customary “road show” (including an “electronic road show”) or other substantial marketing effort by the Company and the underwriters (any such Underwritten Offering, a “Marketed Underwritten Shelf Offering”). Any such Shelf Takedown may be made in the United States by and pursuant to any method or combination of methods legally available to the CD&R Stockholders (including an underwritten offering, a direct sale to purchasers, a sale to or through brokers, dealers or agents, a sale over the Demand Party internet, Block Sales, derivative transactions with third parties, sales in connection with short sales and other hedging transactions). The Company shall also deliver comply with the applicable demand request provisions of the Securities Act with respect to any Non-Sponsor Holders the disposition of all Registrable Securities included on covered by the applicable shelf registration statement and, subject to Shelf Registration Statement in accordance with the limitations intended methods of disposition by the CD&R Stockholders participating in Section 2.2(e), the Demand Party shall permit each such Non-Sponsor Holder to include all or a portion of its Shelf Takedown. The CD&R Stockholders selling any Registrable Securities in the Marketed Underwritten pursuant to a Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and Takedown shall give the Company within two days after delivery prompt written notice of the demand request to consummation of each Shelf Takedown (whether or not such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor HolderShelf Takedown constitutes an Underwritten Offering). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering.

Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), upon the written request of the Demand Party at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering.

Shelf Takedowns. Subject to the expiration or waiver of any applicable lockup pursuant to Section 2.4(d), upon Upon the written request of the Demand Party at any time and from time to time, the Company will shall facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will shall file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, subject to the limitations in Section 2.2(e), the Demand Party Sponsor Holders shall permit each such Non-Sponsor Holder to include all or a portion of its Registrable Securities in the Marketed Underwritten Shelf Offering if such Non-Sponsor Holder notifies the Demand Party and the Company within two days after delivery of the demand request to such Non-Sponsor Holder of its election to participate (which election shall specify the number of Registrable Securities intended to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offering. Notwithstanding the foregoing, the Company shall not be obligated to facilitate a “takedown” under this Section 2.2(f) if, in the good faith judgment of the Board, the Company is in possession of material non-public information the disclosure of which would be materially adverse to the Company and would not otherwise be required under Law, in which case the filing of the applicable prospectus or prospectus supplement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 60th day after receipt by the Company of the written request from a Demand Party to effect the takedown under this Section 2.2(f); provided that the number of any such delays or any delay pursuant to Section 2.2(a)(z) or 2.2(h) shall not exceed two in any twelve (12) month period.

Shelf Takedowns. Subject to At any time when a Shelf Registration statement is effective and its use has not been suspended by the expiration or waiver of any applicable lockup Company pursuant to Section 2.4(d2(c), upon the written request demand (a “Takedown Demand”) by any member of the Demand Party Snow ▇▇▇▇▇▇ Group or the TOBI Group that is a Shelf Participant holding Registrable Shares at any such time and from time to time(the “Initiating Equity Holder”), the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down shares off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters Shelf Registration; provided that (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, i) subject to the limitations set forth in Section 2.2(e)2(a)(ii)(4) hereof, Snow ▇▇▇▇▇▇ shall have the right to make no more than four (4) Takedown Demands and/or Demand Registrations in any twelve (12) month period, (ii) subject to the limitations set forth in Section 2(a)(ii)(5) hereof, the TOBI Group shall have the right to make no more than one (1) Takedown Demand Party or Demand Registration; (iii) the Company shall permit each not be obligated to effect a Marketed Underwritten Takedown Offering unless the shares requested to be sold in such Non-Sponsor offering have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $10,000,000 (net of expected underwriting discounts and commissions); and (iv) the Company will provide (x) in connection with any Overnight Underwritten Takedown Offering at least two (2) business days’ notice to any Equity Holder (other than the Initiating Equity Holder) that is a Shelf Participant and that is a member of the Snow ▇▇▇▇▇▇ Group or the TOBI Group or is a director or executive officer of the Company, and (y) in connection with any Marketed Underwritten Takedown Offering, at least five (5) business days’ notice to include all or any Eligible Holder (other than the Initiating Equity Holder) that is a portion Shelf Participant. If any Shelf Participants entitled to receive a notice pursuant to clause (iii) of its Registrable Securities the preceding sentence request inclusion of their Eligible Shares (by notice to the Company, which notice must be received by the Company no later than (A) in the case of an Overnight Underwritten Takedown Offering, the business day following the date notice is given to such participant or (B) in the case of a Marketed Underwritten Shelf Takedown Offering, three (3) calendar days following the date notice is given to such participant) the Company shall include such shares in the Underwritten Takedown Offering so long as such participants agree to be bound by the applicable provisions of this Section 2; provided that (1) the Initiating Equity Holder shall maintain the right to select the underwriter(s) or managing underwriter(s) for such offering and (2) if such Non-Sponsor Holder notifies managing underwriter(s) determines that marketing factors require a limitation on the Demand Party number of shares to be underwritten, the managing underwriter(s) may limit the number of shares proposed to be included in such offering such that the number of Eligible Shares to be included shall be determined in the manner set forth in Section 2(c). The Shelf Participants participating in such offering and the Company within two days after delivery shall enter into an underwriting agreement in customary form with the underwriter or underwriters of such offering. Any Shelf Participant who has requested inclusion in such Underwritten Takedown Offering as provided above (including the Initiating Equity Holder) may elect to withdraw therefrom at any time prior to the consummation of the demand request takedown by written notice to the Company, the managing underwriter(s) and the Initiating Equity Holder; provided that, if the Company’s counsel or underwriters’ counsel reasonably determines that such Non-Sponsor withdrawal would require a recirculation of the prospectus, then no Eligible Holder of its election shall have the right to participate (which election shall specify withdraw unless the number of Registrable Securities intended Initiating Equity Holder has elected to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offeringwithdraw.

Shelf Takedowns. Subject to At any time when a Shelf Registration statement is effective and its use has not been suspended by the expiration or waiver of any applicable lockup Company pursuant to Section 2.4(d2(c), upon the written request demand (a “Takedown Demand”) by any member of the Demand Party Snow P▇▇▇▇▇ Group or the TOBI Group that is a Shelf Participant holding Registrable Shares at any such time and from time to time(the “Initiating Equity Holder”), the Company will facilitate in the manner described in this Agreement a “takedown” promptly of the Demand Party’s Registrable Securities off of an effective shelf registration statement. Upon the written request of the Demand Party, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement or a prospectus supplement in order to register up to the number of the Demand Party’s Registrable Securities previously taken down shares off of such shelf by the Demand Party and not yet “reloaded” onto such shelf registration statement. In connection with the exercise by the Demand Party of a demand right pursuant to this Section 2.2(f), where the contemplated plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriters Shelf Registration; provided that (a “Marketed Underwritten Shelf Offering”), the Demand Party shall also deliver the applicable demand request to any Non-Sponsor Holders of Registrable Securities included on the applicable shelf registration statement and, i) subject to the limitations set forth in Section 2.2(e)2(a)(ii)(4) hereof, Snow P▇▇▇▇▇ shall have the right to make no more than four (4) Takedown Demands and/or Demand Registrations in any twelve (12) month period, (ii) subject to the limitations set forth in Section 2(a)(ii)(5) hereof, the TOBI Group shall have the right to make no more than one (1) Takedown Demand Party or Demand Registration; (iii) the Company shall permit each not be obligated to effect a Marketed Underwritten Takedown Offering unless the shares requested to be sold in such Non-Sponsor offering have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $10,000,000 (net of expected underwriting discounts and commissions); and (iv) the Company will provide (x) in connection with any Overnight Underwritten Takedown Offering at least two (2) business days’ notice to any Equity Holder (other than the Initiating Equity Holder) that is a Shelf Participant and that is a member of the Snow P▇▇▇▇▇ Group or the TOBI Group or is a director or executive officer of the Company, and (y) in connection with any Marketed Underwritten Takedown Offering, at least five (5) business days’ notice to include all or any Eligible Holder (other than the Initiating Equity Holder) that is a portion Shelf Participant. If any Shelf Participants entitled to receive a notice pursuant to clause (iii) of its Registrable Securities the preceding sentence request inclusion of their Eligible Shares (by notice to the Company, which notice must be received by the Company no later than (A) in the case of an Overnight Underwritten Takedown Offering, the business day following the date notice is given to such participant or (B) in the case of a Marketed Underwritten Shelf Takedown Offering, three (3) calendar days following the date notice is given to such participant) the Company shall include such shares in the Underwritten Takedown Offering so long as such participants agree to be bound by the applicable provisions of this Section 2; provided that (1) the Initiating Equity Holder shall maintain the right to select the underwriter(s) or managing underwriter(s) for such offering and (2) if such Non-Sponsor Holder notifies managing underwriter(s) determines that marketing factors require a limitation on the Demand Party number of shares to be underwritten, the managing underwriter(s) may limit the number of shares proposed to be included in such offering such that the number of Eligible Shares to be included shall be determined in the manner set forth in Section 2(c). The Shelf Participants participating in such offering and the Company within two days after delivery shall enter into an underwriting agreement in customary form with the underwriter or underwriters of such offering. Any Shelf Participant who has requested inclusion in such Underwritten Takedown Offering as provided above (including the Initiating Equity Holder) may elect to withdraw therefrom at any time prior to the consummation of the demand request takedown by written notice to the Company, the managing underwriter(s) and the Initiating Equity Holder; provided that, if the Company’s counsel or underwriters’ counsel reasonably determines that such Non-Sponsor withdrawal would require a recirculation of the prospectus, then no Eligible Holder of its election shall have the right to participate (which election shall specify withdraw unless the number of Registrable Securities intended Initiating Equity Holder has elected to be disposed of by such Non-Sponsor Holder). For the avoidance of doubt, any proposed offer and sale of Registrable Securities to one or more purchasers or underwriters by means of a block trade, bought deal or direct sale shall not be deemed to be a Marketed Underwritten Shelf Offeringwithdraw.