Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 4 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Corium International, Inc.), Investors’ Rights Agreement (Corium International, Inc.)
Underwriting. (i) If the registration Registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders Stockholders as a part of the written notice given pursuant to Section 2.2(a)(i1.02(a)(i). In such event, the right of any Holder each Stockholder to include its Registrable Securities in a registration such Registration pursuant to this Section 2.2 1.02 shall be conditioned upon such HolderStockholder’s participation in such underwriting and the inclusion of such HolderStockholder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing Each Stockholder whose Registrable Securities are to distribute their securities through be included in such underwriting Registration shall (together with the Company) agree to sell such Stockholder’s Registrable Securities on the basis provided in any customary underwriting arrangements approved by the Company and complete and execute all customary questionnaires, power of attorney, indemnities and other documents, in each case in customary form, required for such underwriting arrangements and enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for underwriting by the Company. .
(ii) Notwithstanding any other provision of this Section 2.21.02, if the representative of the underwriter or underwriters advise the Company in writing determines that marketing factors require a limitation on the number of shares Registrable Securities to be underwritten, the underwriters representative may (subject to the limitations allocation priority set forth below) exclude from such Registration and underwriting some or all of the Registrable Securities from, or limit the number of Registrable Securities to which would otherwise be included in, the registration and underwritingunderwritten pursuant hereto. The Company shall so advise all holders of securities Stockholders requesting registrationRegistration, and the number of shares of securities Registrable Securities that are entitled to may be included in the registration Registration and underwriting by each of the Stockholders shall be allocatedreduced, on a pro rata basis (based on the number of Registrable Securities proposed to be in included in such Registration), by such minimum number of shares as follows: (i) firstis necessary to comply with such limitation. For the avoidance of doubt, to none of the Equity Securities being Registered by the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event account shall the shares to be sold by such Holders be reduced below thirty percent (30%) excluded. If any of the total amount Stockholders disapproves of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded it may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 4 contracts
Sources: Stockholders Agreement (BJ's Wholesale Club Holdings, Inc.), Stockholders Agreement (BJ's Wholesale Club Holdings, Inc.), Stockholders Agreement (BJ's Wholesale Club Holdings, Inc.)
Underwriting. If the a registration of statement for which the Company gives notice under this Section 2.4 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Holders. In such event, the right of any Holder to include its such Holder’s Registrable Securities to be included in a registration pursuant to this Section 2.2 2.4 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 Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected by the Companyfor such underwriting. Notwithstanding any other provision of this Agreement but subject to Section 2.22.12, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter(s) may (subject to the limitations set forth below) exclude all Registrable Securities fromrequested to be registered from the registration and the underwriting, or limit and the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own accountCompany, and (ii) second, to the holders of the Series E Shares, Series D Shares, Series C Shares, Series B Shares and Series A-1 Shares holding the Registrable Securities on a pro rata basis, third, to each of the remaining Holders requesting to include inclusion of their Registrable Securities in such registration statement on a pro rata basis, in each case based on the pro rata percentage total number of shares of Registrable Securities then held by each such Holders on a Fully Diluted basisHolder , and fourth to holders of other securities of the Company; provided, however, that the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that (i) the number of Registrable Securities held by holder(s) of the Series E Shares, Series D Shares, Series C Shares, Series B Shares and Series A-1 Shares included in no event shall the shares to be sold by any such Holders be registration is not reduced below thirty twenty-five percent (3025%) of the total amount aggregate number of securities to shares of Registrable Securities for which inclusion has been requested; and (ii) all shares of Registrable Securities held by holder(s) of the Series A Shares or all other shares that are not Registrable Securities and are held by any other person, including, without limitation, any person who is an employee, consultant, officer or director of the Company (or any subsidiary of the Company) shall first be included in excluded from such registration other than with respect to and underwriting before any Registrable Securities held by holder(s) of the Initial Public OfferingSeries E Shares, in which case such Holders’ requests can be reduced in their entiretySeries D Shares, Series C Shares and Series B Shares are so excluded. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveregistration.
Appears in 3 contracts
Sources: Shareholder Agreement (Xunlei LTD), Shareholder Agreements (Xunlei LTD), Shareholder Agreement (Xunlei LTD)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant referred to in Section 2.2(a)(i2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.2 2.1 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 If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders 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 by the CompanyCompany and approved by Holders of at least a majority of the Registrable Securities. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all number of Registrable Securities from, or limit that may be so included shall be apportioned pro rata among the selling Holders based on the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise held by all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the selling Holders requesting to include Registrable Securities or in such registration statement based on the pro rata percentage of Registrable Securities held other proportions as shall mutually be agreed to by all such Holders on a Fully Diluted basis; provided, however, that in selling Holders. In no event shall Registrable Securities be excluded from such registration unless all other stockholders’ securities (including securities for the shares to be sold by such Holders be reduced below thirty percent (30%) account of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyCompany) have been first excluded. 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 also be excluded therefrom by written notice from the Company Company, the underwriter or the underwriterInitiating Holders. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.1(d), then the Company shall then offer to all persons Holders who have retained the right rights to include securities in the registration the right to include additional securities Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons such Holders requesting additional inclusion, in the manner as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (T2 Biosystems, Inc.), Investors’ Rights Agreement (T2 Biosystems, Inc.), Investors’ Rights Agreement (T2 Biosystems, Inc.)
Underwriting. If In the event of a registration of which the Company gives notice is for a registered public offering involving an underwritingpursuant to Section 3.1, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, 3.1(a)(i) that the right of any Holder to include its Registrable Securities participate in a such registration pursuant to this Section 2.2 3.1 shall be conditioned upon such Holder’s participation in such the underwriting arrangements required by this Section 3.1, and the inclusion of such Holder’s Registrable Securities in the underwriting underwriting, subject to the extent provided hereinlimitations set forth below. 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 representative managing underwriter selected for such underwriting by a majority of the underwriter or underwriters selected by Initiating Holders and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.23.1, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the in such registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: allocated in the following priority:
(i) first, among all Holders of Registrable Securities (pro rata among such selling Holders on the basis of the respective amounts of Registrable Securities held by all such selling Holders); provided, however, the aggregate number of Registrable Securities that may be included in such registration may be limited by such managing underwriter; (A) in the case of the Initial Public Offering, only to an amount no less than thirty-three percent (33%) of the Company for securities being sold for its own accounttotal number of shares included in such registration and pro rata among Holders of Registrable Securities on the basis of Registrable Securities held by all such Holders, and (B) in the case of any other offering, only to an amount no less than sixty-six percent (66%) of the total number of shares included in such registration and pro rata among Holders of Registrable Securities on the basis of Registrable Securities held by all such Holders. For purposes of the preceding parenthetical concerning apportionment, for any Holder of Registrable Securities that is a partnership or corporation, the partners, retired partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the relative amount of Registrable Securities owned by such related entities and individuals;
(ii) second, any securities which the Company desires to sell for its own account; and
(iii) third, among all other stockholders of the Holders requesting to include Registrable Securities in such Company having registration statement based on the pro rata percentage of Registrable Securities held by such Holders on rights (other than a Fully Diluted basisHolder); provided, however, that in no event shall the shares to be sold securities held by such stockholders shall be included in the registration to the extent that the number of Registrable Securities requested by the Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect are limited pursuant to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriterSection 3.1(b)(i) above. The Registrable Securities or other securities Company shall so excluded shall also advise all Holders requesting to be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from included in the registration and if underwriting of the number of shares of Registrable Securities that may be included in the registration and the underwriting shall be allocated among all Holders requesting to be included in the registration and underwriting in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by them at the time of filing the registration statement. No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration was previously reduced as a result registration. To facilitate the allocation of marketing factors pursuant to this Section 2.2(b)shares in accordance with the above provisions, the Company shall then offer to all persons who have retained or the right 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 shares so withdrawnallocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of the underwriting, with such person may elect to withdraw therefrom by written notice to the Company and the shares of Registrable Securities included in the registration and underwriting shall be reallocated among the remaining Holders of Registrable Securities requesting to be allocated among the persons requesting additional inclusion, included in the manner set forth aboveregistration and underwriting.
Appears in 3 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Force10 Networks Inc), Investors’ Rights Agreement (Force10 Networks Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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, the Other Selling Holders and other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. assuming conversion 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (GP Investments Acquisition Corp.), Investors’ Rights Agreement (Rimini Street, Inc.), Investors’ Rights Agreement (Rimini Street, Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.2 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). 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 by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to that may be so included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, allocated as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, howeverassuming conversion and (ii) second, that in no event shall to Company, which the shares to be sold by such Holders be reduced below thirty percent (30%) Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyCompany. 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 also be excluded therefrom by written notice from the Company Company, the underwriter or the underwriterInitiating Holders. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.1(e), then the Company shall then offer to all persons Holders who have retained the right rights to include securities in the registration the right to include additional securities Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons such Holders requesting additional inclusion, in the manner as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Prosper Marketplace Inc), Investors’ Rights Agreement (Prosper Marketplace Inc), Investors’ Rights Agreement (Prosper Marketplace Inc)
Underwriting. If reasonably required to maintain an orderly market in the Common Stock, the Holders shall distribute the Registrable Securities covered by their demand by means of an underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their demand by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their demand made pursuant to this Section 2.2, including the identity of the managing underwriter, and the Company shall include such information in the written notice given pursuant referred to in Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 The Company shall, together with all holders of capital stock of the Company 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 by a majority-in-interest of the Initiating Holders and reasonably satisfactory to the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters underwriter shall advise the Company in writing that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation on of the number of shares to be underwritten, then the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders Holders of securities requesting registrationRegistrable Securities that have requested to participate in such offering, and the number of shares of securities Registrable Securities that are entitled to may be included in the registration and underwriting shall be allocatedallocated pro rata among such Holders thereof in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage amounts of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall at the shares to be sold time of filing the Registration Statement. No Registrable Securities excluded from the underwriting by such Holders be reduced below thirty percent (30%) reason of the total amount of securities to underwriter’s marketing limitation shall be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyregistration. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such the underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or Company, the underwriterunderwriter and the Initiating Holders. The Registrable Securities or other securities so excluded withdrawn shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are the underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account (or for the account of other stockholders) in such registration if the underwriter so withdrawn from the registration agrees and if the number of shares of Registrable Securities to would not thereby be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovelimited.
Appears in 3 contracts
Sources: Investor Rights Agreement (Alimera Sciences Inc), Investor Rights Agreement (Alimera Sciences Inc), Investor Rights Agreement (Alimera Sciences Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i1.6(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 1.6 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 CompanyCompany and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the CompanyCompany (or if applicable by the Holders who have initiated such registration,). Notwithstanding any other provision of this Section 2.21.6, if the underwriters advise the Company managing underwriter determines in writing its sole discretion that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement on a pro rata basis based on the pro rata percentage total number of Registrable Securities held by such Holders on a Fully Diluted basiseach participating Holder; provided, however, that but in no event shall the shares to be sold by such Holders amount of securities of the participating Investors included in the offering be reduced below to less than thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to and offering, unless such offering is the Initial Public OfferingOffering of the Company, in which case such Holders’ requests can the participating Holders may be reduced entirely excluded if the managing underwriter makes the determination described above and no other stockholder’s securities are included. To facilitate the allocation of shares in their entiretyaccordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder or other holder to the nearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or other holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from , and shall not be transferred in a public distribution prior to ninety (90) days (one hundred eighty (180) days in the registration and if case of the number Company’s Initial Public Offering) after the date of shares of Registrable Securities to be the final prospectus included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovestatement relating thereto.
Appears in 3 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Obalon Therapeutics Inc), Investors’ Rights Agreement (Obalon Therapeutics Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders holders of Registrable Securities as a part of the written notice given pursuant to Section 2.2(a)(i2(a)(i). In such event, the right of any Holder holders to include its Registrable Securities in a registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s holder's participation in such underwriting and the inclusion of such Holder’s holder's Registrable Securities in the underwriting to the extent provided herein. All Holders holders of Registrable Securities proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters underwriter(s) selected by the Company. Notwithstanding any other provision of this Section 2.22, if the representative of the underwriters advise advises the Company in writing that marketing factors require a limitation on of the number of shares to be underwrittenneed for an Underwriter's Cutback, the underwriters representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting; provided, however, that Registrable Securities shall be included in any over-allotment option granted to the underwriters before inclusion of any shares from the Company. The Company shall so advise all holders of securities requesting registrationregistration of the Underwriter's Cutback, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, allocated first to the Company for securities being sold for its own account, account and (ii) second, to the Holders requesting to include Registrable Securities thereafter as set forth in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretySection 9. If a any person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person it shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other underwriter and any securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registrationregistration ("Withdrawn Securities"). If shares there are so withdrawn from the registration Withdrawn Securities and if the number of shares of Registrable Securities to be included in such registration there was previously reduced as a result of marketing factors pursuant to this Section 2.2(b)an Underwriter's Cutback, the Company shall then offer to all persons who have retained the right 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 of Withdrawn Securities that would have been included in the registration after giving effect to the Underwriter's Cutback had such securities not been withdrawn, with such shares to be allocated among the persons such holders requesting additional inclusion, inclusion in the manner set forth aboveaccordance with Section 9.
Appears in 3 contracts
Sources: Registration Rights Agreement (IHL Investments, LLC), Registration Rights Agreement (Harris Corp /De/), Registration Rights Agreement (Teltronics Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)) hereof. In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 hereof shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting shall be limited 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 representative of the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included inin such registration to an amount no less than thirty percent (30%) of the Registrable Securities requested to be registered by the Holders. The securities held and requested to be included in such underwriting by the Company’s directors, officers, employees, consultants and other shareholders shall be reduced completely before any reduction is made to the registration and underwritingRegistrable Securities held by the Holders. The Company shall so advise all holders of securities Holders requesting registrationto be included in the registration and underwriting, and the number of shares of securities Registrable Securities that are entitled to the managing underwriter determines may be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to allocated among all the Holders requesting to include Registrable Securities be included in such the registration statement based on and underwriting in proportion, as nearly as practicable, to the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; providedthem at the time of filing the registration statement. To facilitate the allocation of shares in accordance with the above provisions, however, that in no event shall the Company or the underwriters may round the number of shares allocated to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect any Holder to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretynearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such the underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwritermanaging underwriter and the Initiating Holders. The Registrable Securities or and/or other securities so excluded withdrawn shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Registration Rights Agreement (Sohu Com Inc), Registration Rights Agreement (Sogou Inc.), Registration Rights Agreement (Sogou Inc.)
Underwriting. (a) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i13.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 13.2 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, directors and officers and the Other Shareholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 2.213.2, if the underwriters advise the Company in writing underwriter determines that marketing or other factors require a limitation on the number of shares to be underwritten, the underwriters underwriter may (subject to the limitations allocation priority set forth below) exclude from such registration and underwriting some or all of the Registrable Securities from, or limit the number of Registrable Securities to which would otherwise be included in, the registration and underwritingunderwritten pursuant hereto. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated in the following manner. The number of shares that may be included in the registration and underwriting on behalf of such Holders, directors and officers and Other Shareholders (if any) shall be allocated, as follows: (i) first, to the Company for securities being sold for its own accountextent consistent with any registration rights granted prior to the date hereof, among such Holders, directors and (ii) secondofficers and Other Shareholders in proportion, as nearly as practicable, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of and other securities which they had requested to be included in such registration other than with respect to at the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretytime of filing the registration statement. If a person who has requested inclusion in such registration as provided above does not agree to any Holder of Registrable Securities or any officer, director or Other Shareholder disapproves of the terms of any such underwriting, such person shall also be excluded it, he or she may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Warrant Agreement (Cisco Systems Capital CORP), Warrant Agreement (Cisco Systems Capital CORP), Warrant Agreement (Cisco Systems Capital CORP)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. Notwithstanding the foregoing, no such reduction shall reduce the value of the Registrable Securities of the Holders included in such registration below thirty percent (30%) of the total value of securities included in such registration, unless such offering is the Initial Public Offering and such registration does not include shares of any other selling stockholders (excluding shares registered for the account of the Company), in which event any or all of the Registrable Securities of the Holders may be excluded. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyassuming conversion. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Prosper Marketplace Inc), Investors’ Rights Agreement (Prosper Marketplace Inc), Investors’ Rights Agreement (Prosper Marketplace Inc)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of the written notice given their request made pursuant to Section 2.2(a)(i2(a)(i). In such eventIf Other Stockholders request inclusion of their securities in the underwriting, the right of any Holder Holders shall offer to include its Registrable Securities in a registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion securities of such Holder’s Registrable Securities Other Stockholders in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 2. The Holders whose shares are to be included in such registration and the extent provided herein. All Holders Company shall (together with all Other Stockholders 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 by the Initiating Holders and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.22(a), if the underwriters advise representative advises the Company Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting in accordance with Section 2(b)(ii); provided that such allocation shall be allocated, as followsmade in the following manner: (i) first, Pro Rata (as defined below) to Registrable Securities and securities entitled to registration under the Company for securities being Series A Registration Rights Agreement (as defined below), regardless of the number of shares that can be sold for its own account, and without exceeding the Maximum Number of Shares; (ii) second, to securities that the Holders requesting Company desires to include Registrable Securities in sell, and (iii), third, securities for the account of Other Stockholders that the Company is obligated to register pursuant to written contractual arrangements with such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedpersons that can be sold, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public OfferingPro Rata, in which the case such Holders’ requests can be reduced in their entiretyof (ii) and (iii) without exceeding the Maximum Number of Shares. If a person any Holder or Other Stockholder who has requested inclusion in such registration as provided above does not agree to herein disapproves of the terms of any such the underwriting, such person shall also be excluded Person may elect to withdraw therefrom by providing written notice from to the Company or Company, the underwriterunderwriter and the Initiating Holders. The Registrable Securities or other securities so excluded withdrawn shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Investment Agreement (Dana Corp), Investment Agreement (Dana Corp), Registration Rights Agreement (Dana Holding Corp)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i1.6(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 1.6 shall be conditioned upon such Holder’s '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 CompanyCompany and the other holders distributing their securities through such underwriting) enter into and perform their obligations under an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.21.6, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocatedon a pro rata basis based on the total number of securities (including, as follows: without limitation, Registrable Securities) entitled to registration pursuant to registration rights granted to the participating Holders by the Company; provided, that, (i) first, with respect to the Company for securities being sold for its own accountIPO, the managing underwriter may exclude all of such Registrable Securities and (ii) secondwith respect to any registration following the IPO, to the managing underwriter may exclude only such number of Registrable Securities as would provide the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below with at least thirty percent (30%) of the total amount number of securities shares to be included registered and sold pursuant to such registration; provided further that (X) in no event shall any Registrable Securities be excluded from such registration offering unless all other than shareholders' securities are first excluded and (Y) any Registrable Securities held by a Founder shall be excluded before any other Registrable Securities are excluded. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder or other holder to the nearest 100 shares. For purposes of the preceding sentence concerning apportionment, for any selling stockholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership or corporation, the affiliated venture capital funds, partners, retired partners and stockholders of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "selling Holder," and any pro rata reduction with respect to such "selling Holder" shall be based upon the Initial Public Offering, in which case aggregate amount of Registrable Securities owned by all such Holders’ requests can be reduced in their entiretyrelated entities and individuals. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or other holder disapproves of the terms of any such underwriting, such person shall also be excluded he or she may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from , and shall not be transferred in a public distribution prior to ninety (90) days after the effective date of the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovestatement relating thereto.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Omneon Video Networks, Inc.), Investor Rights Agreement (Omneon Video Networks, Inc.)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of the written notice given their request made pursuant to Section 2.2(a)(i2(a)(i). In such eventIf Other Stockholders request inclusion of their securities in the underwriting, the right of any Holder Holders shall offer to include its Registrable Securities in a registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion securities of such Holder’s Registrable Securities Other Stockholders in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 2. The Holders whose shares are to be included in such registration and the extent provided herein. All Holders Company shall (together with all Other Stockholders 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 by the Initiating Holders and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.22(a), if the underwriters advise representative advises the Company Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting in accordance with Section 2(b)(ii); provided that such allocation shall be allocated, as followsmade in the following manner: (i) first, Pro Rata (as defined below) to Registrable Securities and securities entitled to registration under the Company for securities being Series B Registration Rights Agreement (as defined below), regardless of the number of shares that can be sold for its own account, and without exceeding the Maximum Number of Shares; (ii) second, to securities that the Holders requesting Company desires to include Registrable Securities in sell, and (iii), third, securities for the account of Other Stockholders that the Company is obligated to register pursuant to written contractual arrangements with such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedpersons that can be sold, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public OfferingPro Rata, in which the case such Holders’ requests can be reduced in their entirety. of (ii) and (iii) without exceeding the Maximum Number of Shares.. If a person any Holder or Other Stockholder who has requested inclusion in such registration as provided above does not agree to herein disapproves of the terms of any such the underwriting, such person shall also be excluded Person may elect to withdraw therefrom by providing written notice from to the Company or Company, the underwriterunderwriter and the Initiating Holders. The Registrable Securities or other securities so excluded withdrawn shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Investment Agreement (Dana Corp), Investment Agreement (Dana Corp), Registration Rights Agreement (Dana Holding Corp)
Underwriting. If the registration of which the Company gives notice is ------------ for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the Other Shareholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 2.22, if the underwriters advise the Company in writing underwriter determines that marketing factors require a limitation on the number of shares to be underwritten, and (a) if such registration is the underwriters Initial Public Offering, the underwriter may (subject to the limitations allocation priority set forth below) exclude from such registration and underwriting some or all of the Registrable Securities fromwhich would otherwise be underwritten pursuant to the notice described herein, or and (b) if such registration is other than the Initial Public Offering, the underwriter may (subject to the allocation priority set forth below) limit the number of Registrable Securities to be included in, in the registration and underwritingunderwriting to not less than fifty percent (50%) of the securities included therein (based on aggregate market values). The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocatedallocated in the following manner. The securities of the Company held by officers and directors of the Company (other than Registrable Securities) shall be excluded from such registration and underwriting to the extent required by such limitation, and, if a limitation on the number of shares is still required, the number of shares that may be included in the registration and underwriting shall be allocated among all such Holders and Other Shareholders in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of and other securities which they had requested to be included in such registration other than with respect at the time of filing the registration statement, except that Registrable Securities held by the Other Shareholders shall be the last to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretylimited. If a person who has requested inclusion in such registration as provided above does not agree to any Holder of Registrable Securities or any officer, director or Other Shareholder disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Registration Rights Agreement (Millitech Corp), Registration Rights Agreement (Millitech Corp), Registration Rights Agreement (Telaxis Communications Corp)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i5.3(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 5.3 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 hereinherein in subject to the limitations expressed in Section 5.2. All Holders proposing to distribute their Registrable Securities through such underwriting shall, together with the Company and the other parties distributing 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 by the Company. Notwithstanding any other provision of this Section 2.25.3, if the underwriters advise the Company in writing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting, subject to the terms of this Section 5.3. The Company shall so advise all holders of the Company’s securities requesting registrationthat would otherwise be registered and underwritten pursuant hereto, and the number of shares of securities such securities, including Registrable Securities, that are entitled to may be included in the registration and underwriting shall be allocated, as follows: (i) first, allocated first to the Company for securities being sold for its own account, and (ii) second, second to the Holders requesting to include Registrable Securities in such and any other holders with registration statement rights on a pro rata basis based on the pro rata percentage total number of Registrable Securities held by the Holders and such Holders on a Fully Diluted basis; provided, however, that in no event other holders. No such reduction shall (i) reduce the shares securities being offered by the Company for its own account to be sold by such included in the registration and underwriting, or (ii) subject to the limitations expressed in Section 5.2, reduce the amount of securities of the selling Holders be reduced included in the registration below thirty twenty-five percent (3025%) of the total amount of securities to included in such registration by all selling stockholders. No securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from For the registration and if avoidance of doubt, nothing in this Section 5.3(b) is intended to diminish the number of shares of Registrable Securities securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), by the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveunderwriting.
Appears in 3 contracts
Sources: Stockholder Agreement (Amyris, Inc.), Stockholder Agreement (Amyris, Inc.), Securities Purchase Agreement (Amyris, Inc.)
Underwriting. If the registration of which the Company Match gives notice is for a registered public offering involving an underwriting, the Company Match shall so advise the Holders IAC as a part of the written notice given pursuant to Section 2.2(a)(i1.2(a)(i). In such event, the right of any Holder IAC to include its Registrable Securities in a registration pursuant to this Section 2.2 1.2 shall be conditioned upon such HolderIAC’s participation in such underwriting and the inclusion of such HolderIAC’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing If IAC proposes to distribute their its securities through such underwriting it shall (together with the CompanyMatch) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the CompanyMatch, provided that such underwriting agreement shall be subject to IAC’s written consent. Notwithstanding any other provision of this Section 2.21.2, if the underwriters advise the Company Match in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting. The Company Match shall so advise all holders of securities requesting registrationIAC, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, allocated as follows: (i) first, to the Company Match for securities being sold for its own account, and (ii) second, to the Holders requesting IAC; and (iii) third, to include Registrable Securities in such registration statement based on the pro rata percentage any other holders of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyMatch securities. 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 also be excluded therefrom by written notice from the Company Match or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Investor Rights Agreement (Iac/Interactivecorp), Investor Rights Agreement (Match Group, Inc.), Investor Rights Agreement (Match Group, Inc.)
Underwriting. If the a registration of statement under which the Company gives notice under this Section 3 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Holders. In such event, the right of any Holder to include its such Holder’s Registrable Securities to be included in a registration pursuant to this Section 2.2 3 shall be conditioned conditional 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 the Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter(s) may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, shares from the registration and the underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) first, first to the Company for securities being sold for its own accountCompany, and (ii) second, to each of the Holders requesting to include inclusion of their Registrable Securities in such registration statement on a pro rata basis based on the pro rata percentage total number of Registrable Securities then held by each such Holders on a Fully Diluted basisHolder; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) right of the total amount underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that all shares that are not Registrable Securities and are held by any other person, excluding the Company but including, without limitation, any person who is an employee, officer or director of securities to the Company (or any subsidiary of the Company) shall first be included in excluded from such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyand underwriting before any Registrable Securities are so excluded. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveregistration.
Appears in 3 contracts
Sources: Merger Agreement (Cinedigm Corp.), Registration Rights Agreement (Cinedigm Corp.), Stock Purchase Agreement (Cinedigm Corp.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.3(a). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 2.3 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 representative of the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.22.3, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to limit the limitations set forth below) exclude all Registrable Securities fromand other securities to be distributed through such underwriting; provided, or limit however, that, in no event shall any Registrable Securities be so limited unless all other securities of the Company (other than shares held by the Initiating Holders, in the case of a Demand Registration, and other than shares for the Company’s account (i.e., primary shares), in the case of a Company Registration) are excluded in full from such offering; provided, further, that in no event shall the number of Registrable Securities included in such registration be reduced to less than twenty-five percent (25%) of the total number of securities to be included inin such registration except in connection with the Company’s initial public offering, the registration and underwritingin which case all Registrable Securities may be excluded in full. The Company shall so advise all holders Holders distributing their securities through such underwriting of securities requesting registrationsuch limitation (or exclusion, if applicable) and the number of shares of securities Registrable Securities that are entitled to may be included in the registration and underwriting shall be allocatedallocated (if applicable) among all such Holders in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; providedat the time of filing the registration statement. To facilitate the allocation of shares in accordance with the above provisions, however, that in no event shall the Company may round the number of shares allocated to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect any Holder or holder to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretynearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to any Participating Holder disapproves of the terms of any such underwriting, such person shall also be excluded Participating Holder may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration, and shall not be transferred in a public distribution prior to ninety (90) days after the effective date of the registration statement relating thereto, or such other shorter period of time as the underwriters may require. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b)registration, the Company shall then offer to all persons who have retained retaining the right 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 withdrawnregistration, with such shares to be being allocated among all such Participating Holders in proportion, as nearly as practicable, to the persons requesting additional inclusion, in respective amounts of Registrable Securities held by such Participating Holders at the manner set forth abovetime of filing the registration statement.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (YuMe Inc), Investors’ Rights Agreement (YuMe Inc), Investors’ Rights Agreement (YuMe Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise each of the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2(b)(i)(1). In such event, the right of any Holder each of the Holders to include its Registrable Securities in a such registration pursuant to this Section 2.2 2(b) shall be conditioned upon such Holder’s Holders’ participation in such underwriting and the inclusion of such Holder’s Holders’ Registrable Securities in the underwriting to the extent provided herein. All The Holders proposing whose Registrable Securities are to distribute their securities through be included in such underwriting registration shall (together with the CompanyCompany and the Other Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 2.22(b), if the underwriters advise the Company in writing representative determines that marketing factors require a limitation on the number of shares to be underwritten, and (x) if such registration is the underwriters Initial Public Offering, the representative may (subject to the limitations allocation priority set forth below) exclude from such registration and underwriting some or all of the Registrable Securities fromwhich would otherwise be underwritten pursuant hereto, or and (y) if such registration is other than the Initial Public Offering, the representative may (subject to the allocation priority set forth below) limit the number of Registrable Securities to be included in, in the registration and underwritingunderwriting to not less than twenty five percent (25%) of the shares included therein (based on the number of shares); provided, however, without limiting the foregoing, the Company shall have no obligation to include any such registration any Registrable Securities held by the Management Investors if the underwriters determine, in their sole discretion, that marketing factors require the Registrable Securities held by such Management Investors to be excluded from the registration. The Company shall immediately so advise all holders of securities requesting registrationregistration of such limitation, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocatedallocated in the following manner: The securities of the Company held by officers, as follows: directors and Other Stockholders of the Company (iother than Registrable Securities and other than securities held by holders who by contractual right demanded such registration (“Demanding Holders”)) first, shall be excluded from such registration and underwriting to the Company for securities being sold for its own accountextent required by such limitation, and, if a limitation on the number of shares is still required, the number of shares that may be included in the registration and (ii) second, to underwriting by each of the Holders requesting to include Registrable Securities in such registration statement and Demanding Holders shall be reduced, on a pro rata basis (based on the pro rata percentage number of Registrable Securities shares held by such Holders on a Fully Diluted basis; providedHolder or Demanding Holder), however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) minimum number of shares as is necessary to comply with such limitation. If any of the total amount Holders or any officer, director or Other Stockholder disapproves of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded he, she or it may elect to withdraw therefrom by providing written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Registration Rights Agreement (Daramic, LLC), Registration Rights Agreement (Polypore International, Inc.), Registration Rights Agreement (Polypore International, Inc.)
Underwriting. If the registration of statement under which the Company Parent gives notice under Section 12.1(a) is for a registered an underwritten public offering involving an underwritingoffering, the Company Parent shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Registrable Securities. In such event, the right of any such Holder to include its Registrable Securities be included in a registration pursuant to this Section 2.2 12.1 shall be conditioned upon such Holder’s 's participation in such the 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 Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement and selling shareholder documents in customary form with the representative of the underwriter or underwriters selected for such underwriting by the CompanyParent. Notwithstanding any other provision of this Section 2.212.1, if the underwriters advise the Company underwriter determines in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares that may be included in the underwriting shall be allocated, first, to Parent; second, to those holders of Parent registration rights existing prior to the date of this Agreement, to the extent priority over any subsequent holders of registration rights is expressly provided for in such pre-existing rights, otherwise pro rata with the Holders; third, to the Holders on a pro rata basis based on the total Registrable Securities held by the Holders; and fourth, to any shareholder of Parent (other than a Holder) on a pro rata basis. No such reduction shall reduce the securities that are entitled being offered by Parent for its own account to be included in the registration and underwriting shall be allocatedunderwriting. If the underwriter so determines in good faith, as follows: (i) first, to any or all of the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also may be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such any underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to accordance with this Section 2.2(b12.1(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 3 contracts
Sources: Merger Agreement (La Man Corporation), Merger Agreement (Papais Lou A), Merger Agreement (Long Terry J)
Underwriting. If (a) The distribution of the Registrable Securities covered by a registration statement referred to in Section 2.1 shall be effected by means of the method of distribution reasonably selected by the stockholder participants holding a majority in interest of the Priority Securities that have been properly elected to be included in the relevant registration (the “Majority in Interest”). Subject to the foregoing, the Majority in Interest may also change the resale distribution method from time to time (subject to amendment of the registration statement at the expense of which the Company gives notice relevant stockholder participants as required to describe such changes).
(b) Any resale distribution of securities (including Registrable Securities) covered by a registration statement filed pursuant to Section 2.2 above shall be effected by means of the method of distribution and timing reasonably selected by the Holders.
(c) If a distribution is for a registered public offering involving effected by means of an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 (together with all Holders proposing to distribute their securities through such underwriting underwriting) shall (together with the Company) enter into an underwriting agreement in customary form with a managing underwriter of regional or national recognized standing selected for such underwriting by a Majority in Interest (in the representative case of the underwriter a registration pursuant to Section 2.1) or underwriters selected by the Company. Holders (in the case of a registration pursuant to Section 2.2), and in each case approved by the Company (such consent not to be unreasonably withheld).
(d) Notwithstanding any other provision of this Article 2, with respect to a distribution of securities covered by a registration statement filed pursuant to either Section 2.1 or Section 2.2, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders Holders of securities requesting registrationRegistrable Securities, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in the underwriting shall be allocated (i) first, among the holders of Priority Securities, pro rata according to the number of Priority Securities that have been properly elected to be included in the relevant registration, and (ii) second, in the event that the number of shares that the managing underwriter believes may be underwritten has not been reached pursuant to (i), pro rata according to the number of other securities offered to be included in such registration was previously reduced underwriting.
(e) In the event that, as a result of marketing factors pursuant to this the “cutback” provisions of Section 2.2(b2.3(d), the Company Investor making a request pursuant to Section 2.1 is unable to register more than 66 2/3rds% of the Registrable Securities which the Investor has properly requested to be registered in accordance with the provisions of this Agreement (such limited registration, a “Limited Registration”), than the requesting Holder shall then offer not be deemed to all persons who have retained made a request pursuant to Section 2.1 and, notwithstanding the effectiveness of the applicable registration, shall preserve its right to include securities make a request pursuant to Section 2.1 in the registration the right to include additional securities future, subject in the registration in an aggregate amount equal all cases to the number provisions of shares so withdrawnthis Agreement.
(f) If any Holder disapproves of the terms of the underwriting, with such shares Holder may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the other Holders, and the applicable registration shall be deemed to be allocated among a Failed Registration (and the persons requesting additional inclusion, in the manner set forth aboveInvestor shall retain its demand rights) for purposes of Section 2.1(b) hereof. The Registrable Securities so withdrawn shall also be withdrawn from registration.
Appears in 3 contracts
Sources: Registration Rights Agreement (Wilhelmina International, Inc.), Registration Rights Agreement (Newcastle Partners L P), Registration Rights Agreement (Newcastle Partners L P)
Underwriting. If the registration of which the Company gives notice a Piggyback Registration is for a registered public offering involving an underwriting, the Company Key shall so advise the Holders in writing or as a part of the written notice given pursuant to Section 2.2(a)(i5.18(b)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 5.18(b)(i) shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities Key Shares in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyKey) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the CompanyKey. Notwithstanding any other provision of this Section 2.25.18(b)(ii), if the underwriters advise the Company in writing underwriter or Key determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters underwriter may (subject to the limitations set forth below) exclude some or all Registrable Securities from, or limit the number of Registrable Securities to be included in, the Key Shares from such registration and underwriting. The Company Key shall so advise all holders of securities requesting registrationHolders (except those Holders who failed to timely elect to distribute their Key Shares through such underwriting or have indicated to Key their decision not to do so), and the number of shares of securities Key Shares that are entitled to may be included in the registration and underwriting shall be allocated, as follows: (iA) firstfirst to Key; and (B) then to all selling stockholders, including the Holders, who have requested to sell in the registration on a pro rata basis according to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage number of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares requested to be sold included. No Key Shares excluded from the underwriting by such Holders be reduced below thirty percent (30%) reason of the total amount of securities to underwriter’s marketing limitation shall be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyregistration. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from the Company or to Key and the underwriter. The Registrable Securities or Key Shares and/or other securities so excluded withdrawn from such underwriting shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from ; provided, however, that, if by the withdrawal of such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the Key Shares a greater number of shares of Registrable Securities to Key Shares held by other Holders may be included in such registration was previously reduced as a result (up to the maximum of marketing factors pursuant to this Section 2.2(bany limitation imposed by the underwriters), the Company then Key shall then offer to all persons Holders who have retained the right to include securities included Key Shares in the registration the right to include additional securities Key Shares pursuant to the terms and limitations set forth herein in the registration same proportion used above in an aggregate amount equal to determining the number of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion, in the manner set forth aboveunderwriter limitation.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (OFS Energy Services, LLC), Purchase and Sale Agreement (Key Energy Services Inc), Purchase and Sale Agreement (Key Energy Services Inc)
Underwriting. If a registration statement referred to in the registration of which the Company gives notice Piggyback Notice is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Holders. In such event, the right of any such Holder to include its Registrable Securities in such a registration pursuant to this Section 2.2 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 as provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise Board, after having consulted with the managing underwriter(s), determines in good faith that the Company in writing that marketing factors require should impose a limitation on of the number of shares to be underwritten, then the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders Holders of securities requesting registrationRegistrable Securities that would otherwise be registered and underwritten pursuant hereto, and the Company may exclude shares of the Registrable Securities from the registration and the underwriting, and the number of shares of securities that are entitled to will be included in the registration and the underwriting shall be allocatedallocated as set forth in Section 2.2, as follows: (i) firstor, if the underwriting is not pursuant to Section 2.2, shall be allocated first to the Company for securities being sold for its own accountCompany, and (ii) second, to each of the Holders requesting to include inclusion of their Registrable Securities in such registration statement on a pro rata basis based on the pro rata percentage total number of Registrable Securities then held by each such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyHolder. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if registration. The defined term "Holder" shall be construed for purposes of this Section 2.3(b) in the number same manner as set forth in the last sentence of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above).
Appears in 3 contracts
Sources: Stockholder Agreement (Dresser-Rand Group Inc.), Stockholder Agreement (Dresser-Rand Group Inc.), Stockholder Agreement (Dresser-Rand Group Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering Public Offering involving an underwriting, the Company shall so advise each of the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2(b)(i)(1). In such event, the right of any Holder each of the Holders to include its Registrable Securities in a registration pursuant to this Section 2.2 2(b) shall be conditioned upon such Holder’s Holders' participation in such underwriting and the inclusion of such Holder’s Holders' Registrable Securities in the underwriting to the extent provided herein. All The Holders proposing whose shares are to distribute their securities through be included in such underwriting registration shall (together with the CompanyCompany and the Other Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 2.22(b), if the underwriters advise the Company in writing representative determines that marketing factors require a limitation on the number of shares to be underwritten, the underwriters representative may (subject to the limitations allocation priority set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocatedallocated in the following manner: The securities of the Company held by officers, as follows: directors and Other Stockholders of the Company (iother than Registrable Securities and other than securities held by holders who by contractual right demanded such registration ("Demanding Holders")) first, shall be excluded from such registration and underwriting to the Company for securities being sold for its own accountextent required by such limitation, and, if a limitation on the number of shares is still required, the number of shares that may be included in the registration and (ii) second, to underwriting by each of the Holders requesting to include Registrable Securities in such registration statement and Demanding Holders shall be reduced, on a pro rata basis (based on the pro rata percentage number of Registrable Securities shares held by such Holders on a Fully Diluted basis; providedHolder), however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) minimum number of shares as is necessary to comply with such limitation. If any of the total amount Holders or any officer, director or Other Stockholder disapproves of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Esarbee Investments LTD), Registration Rights Agreement (Esarbee Investments LTD)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i1.3(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 1.3 shall be conditioned upon such Holder’s '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 CompanyCompany and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company, but subject to the reasonable approval of Holders holding more than a majority of the Registrable Securities to be included in such registration. Notwithstanding any other provision of this Section 2.21.3, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwritingin such registration. The Company shall so advise all Holders and other holders of distributing their securities requesting registration, through such underwriting and the number of shares of securities that are entitled to may be included in the registration and underwriting (other than on behalf of the Company) shall be allocatedallocated among all Holders and such other holders (provided that such other holders have contractual rights to participate in such registration in accordance with Sections 1.3(c) hereof which are not subordinate to the Holders) in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include respective amounts of Registrable Securities or other securities requested to be included in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisand such other holders; provided, however, that in no event shall the shares to be sold by such amount of Registrable Securities of the Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities to be included in such offering; provided that in each such case, no shares held by any Holder shall be so excluded from such registration until all shares proposed to be registered by the Founders or other than parties granted registration rights pursuant to Section 1.3(c) hereof are excluded from the registration. To facilitate the allocation of shares in accordance with respect the above provisions, the Company may round the number of shares allocated to any Holder or holder to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretynearest 100 shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or holder disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other Any securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from , and shall not be transferred in a public distribution prior to ninety (90) days after the effective date of the registration and if statement relating thereto, or such other shorter period of time as the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveunderwriters may require.
Appears in 2 contracts
Sources: Rights Agreement (Imanage Inc), Rights Agreement (Imanage Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.2 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders 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 by the Company, which underwriters are reasonably acceptable to a majority-in-interest of the Initiating Holders. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to that may be so included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, allocated as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; providedand (ii) second, howeverto the Company, that in no event shall which the shares to be sold by such Holders be reduced below thirty percent (30%) Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyCompany. 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 also be excluded therefrom by written notice from the Company Company, the underwriter or the underwriterInitiating Holders. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.1(d), then the Company shall then offer to all persons Holders who have retained the right rights to include securities in the registration the right to include additional securities Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons such Holders requesting additional inclusion, in the manner as set forth above. For purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.2(b), fewer than all of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Kinnate Biopharma Inc.), Investors’ Rights Agreement (Kinnate Biopharma Inc.)
Underwriting. If the registration of statement under which the Company gives notice under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Registrable Securities. In such event, the right of any such Holder to include its Registrable Securities be included in a registration pursuant to this Section 2.2 2.3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.2the Agreement, if the underwriters advise the Company underwriter determines in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for and to the Holders on a pro rata basis based on the number of securities being sold for its own account, the Company and (ii) the Holders seek to include in such registration and second, to any other shareholder of the Holders requesting to include Registrable Securities in such registration statement based Company (other than a Holder) on the a pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in . In no event shall the will shares to be sold by such Holders be reduced below thirty percent (30%) of any shareholder of the total amount of securities to Company (other than a Holder) be included in such registration other which would reduce the number of shares which may be included by Holders without the written consent of Holders of not less than with respect a majority of the Registrable Securities proposed to be sold in the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyoffering. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration registration. For any Holder which is a partnership or corporation, the partners, retired partners and if shareholders of such Holder, or the number estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares of Registrable Securities to be carrying registration rights owned by all entities and individuals included in such registration was previously reduced "Holder," as a result of marketing factors pursuant to defined in this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovesentence.
Appears in 2 contracts
Sources: Investor Rights Agreement (Safeguard Scientifics Inc Et Al), Investor Rights Agreement (Tangram Enterprise Solutions Inc)
Underwriting. (i) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and the Other Selling Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. .
(ii) Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (iA) first, to the Company for securities being sold for its own account, and (iiB) second, to the Holders and Other Selling Stockholders requesting to include Registrable Securities or Other Shares in such registration statement based on the aggregate pro rata percentage of Registrable Securities and Other Shares held by such Holders and Other Selling Stockholders, on a Fully Diluted pari passu basis; provided. Notwithstanding the foregoing, however, that no such exclusion or allocation shall reduce the amount of securities of the Holders included in no event shall the shares to be sold by such Holders be reduced registration statement below thirty fifty percent (3050%) of the total amount of securities to be included in such registration statement for the account of the persons other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. Company.
(iii) If a person Holder or Other Selling Stockholder who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwritermanaging underwriter(s). The Registrable Securities or other securities Other Shares so excluded shall also be withdrawn from such registration. Any Registrable Securities or other If securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities or Other Shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons Holders and Other Selling Stockholders who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovein Section 2.2(b)(ii).
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Google Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.1(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 2.1 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 CompanyCompany and the Other Selling Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders Holders, assuming conversion and (iii) third, to the Other Selling Stockholders requesting to include Other Shares in such registration statement based on a Fully Diluted basis; the pro rata percentage of Other Shares held by such Other Selling Stockholders, assuming conversion provided, however, that the right of the underwriters to exclude Registrable Securities from the registration and underwriting as described above shall be restricted so that the number of Registrable Securities included in no event shall the shares to be sold by any such Holders be registration is not reduced below thirty (A) twenty five percent (3025%) of the total amount of securities to be shares included in such the first registration other than with respect initiated by the Company following the Company’s Initial Public Offering or (B) fifty percent (50%) of the shares included in any registration initiated by the Company after the registration referred to in clause (A). Notwithstanding the foregoing, in a registration relating to the Company’s Initial Public Offering, in which case such Holders’ requests can all Registrable Securities may be reduced in their entiretyexcluded. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.1(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusioninclusion on a pro rata basis, in the manner set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Sonos Inc)
Underwriting. If the registration of a Registration Statement under which the Company gives notice under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Eligible Holders. In such event, the right of any Holder Eligible Holders to include its Registrable Securities in a registration Registration pursuant to this Section 2.2 2.3 shall be conditioned upon such the Eligible Holder’s 's participation in such underwriting and the inclusion of such Eligible Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through Each Selling Shareholder shall, in such underwriting shall (together with the Company) event, enter into an underwriting agreement in customary form in connection with registrable secondary offerings with the representative of the managing underwriter or underwriters underwriter(s) selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise underwriter(s) advise(s) the Company and the Selling Shareholders in writing that marketing factors require a limitation on in its or their opinion the number of shares securities requested to be underwrittenRegistered exceeds the Maximum Number, then the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, the Selling Shareholders and include such Maximum Number in the Registration. The number of shares of securities that are entitled to may be included in the registration Registration and the underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own accountCompany, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement all Selling Shareholders, based on the pro rata percentage relative proportion of Registrable Securities held by shares of all such Holders on a Fully Diluted basis; providedSelling Shareholders, howeverand third, that in no event shall the shares if any, to be sold by such Holders be reduced below thirty percent (30%) other securityholders of the total amount of Company who have requested that their securities to be included in such Registration Statement and who hold contractual registration other than rights with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretysecurities. If a person any Selling Shareholder who has requested inclusion elected to participate in such registration as provided above does not agree to the underwritten offering disapproves of the terms of any such underwriting, such person shall also be excluded Selling Shareholder may elect to withdraw therefrom by promptly providing written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from , at any time prior to the sale thereof (or, if applicable, the entry into a binding agreement for such registrationsale). Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveRegistration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cascade Investment LLC), Registration Rights Agreement (Gabelli Income Series Funds Inc)
Underwriting. If the Holders initiating the registration request under this Section 2.2 (the “Initiating Holders”) intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company then they shall so advise the Holders Company as a part of their request made pursuant to this Section 2.2 and the Company shall include such information in the written notice given pursuant referred to Section 2.2(a)(iin subsection 2.2(a). In such event, the right of any Holder to include his, her or its Registrable Securities in a such registration pursuant to this Section 2.2 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) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Registrable Securities held by the Initiating Holders (and reasonably acceptable to the Company). The Company shall not be required to include any securities of any Holder in such underwriting unless such ▇▇▇▇▇▇ accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by a majority in interest of the Registrable Securities held by the Initiating Holders (and reasonably acceptable to the Company), and enters into an underwriting agreement in customary form with such underwriter or underwriters. Notwithstanding any other provision of this Section 2.2, if the underwriters advise underwriter(s) advise(s) the Company in writing that marketing factors require a limitation on of the number of shares securities to be underwritten, underwritten then the underwriters may (subject to the limitations set forth below) exclude Company shall so advise all Holders of Registrable Securities fromthat would otherwise be registered and underwritten pursuant hereto, or limit and the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and underwriting shall be allocated, reduced as follows: (irequired by the underwriter(s) first, to the Company for securities being sold for its own account, and (ii) second, to allocated among the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities on a pro rata basis according to the number of Registrable Securities then outstanding held by such Holders on a Fully Diluted basiseach Holder requesting registration (including the Initiating Holders); provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such underwriting and registration was previously shall not be reduced as a result unless all other securities of marketing factors pursuant to this Section 2.2(b), the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded and withdrawn from such underwriting shall then offer to all persons who have retained be withdrawn from the right 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 the persons requesting additional inclusion, in the manner set forth aboveregistration.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Wealthfront Corp), Investors’ Rights Agreement (WEALTHFRONT Corp)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.2(a)(i2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.2 2.1 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 If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders 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 by a majority in interest of the Initiating Holders subject to the consent of the Company. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to that may be so included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the allocated among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyassuming conversion. 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 also be excluded therefrom by written notice from the Company Company, the underwriter or the underwriterInitiating Holders. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the Registration Rights Agreement re Crispr Therapeutics AG 9 registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.1(d), then the Company shall then offer to all persons Holders who have retained the right rights to include securities in the registration the right to include additional securities Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons such Holders requesting additional inclusion, in the manner as set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (CRISPR Therapeutics AG)
Underwriting. If the registration of which the Company gives notice is for undertakes a registered public offering involving an underwritingunderwriting pursuant to the Shelf Registration, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Holders. In such event, the right of any such Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s participation participate in such underwriting and the inclusion of include 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 CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters or the Company may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registrationHolders, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to other holders of securities of the Company with registration rights senior to the Holders, and (iii) third, to the Holders requesting to include Registrable Securities in such registration statement and to other holders of securities of the Company with pari passu registration rights, based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedand such other holders, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyassuming conversion. If a person who has requested inclusion in such registration as provided above Holder does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall may also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall may be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sirenza Microdevices Inc), Registration Rights Agreement (Sirenza Microdevices Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i4(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 4 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s Registrable Securities 's shares of the Common Stock in the underwriting to the extent provided hereinherein and shall be further conditioned upon the Company receiving requests to include in the underwriting shares of the Common Stock having a Market Value as of the fifteenth day following mailing of the Company's notice of not less than $500,000. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the officers and directors of the Company and Other Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 2.24, if the underwriters advise the Company in writing underwriter determines that marketing factors require a limitation on the number of shares to be underwritten, the underwriters underwriter may (subject to the limitations allocation priority set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities shares of the Common Stock to be included in, in the registration and underwritingunderwriting by all Holders, officers and directors of the Company and Other Stockholders requesting registration. The Company shall so advise all holders of securities shares of the Common Stock requesting registrationregistration of the limitation on the number of shares to be underwritten, and the number of shares of securities the Common Stock that are entitled to be included in the registration and underwriting shall be allocatedallocated in the following manner: the number of shares to be included in the registration and underwriting by the Company shall not be reduced and any remaining shares shall be allocated among all such Holders, officers and directors of the Company and Other Stockholders in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of Common Stock or other securities which they had requested to be included in such registration other than with respect to at the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretytime of filing the registration statement. If a person who has requested inclusion in such registration as provided above does not agree to any Holder of shares of the Common Stock or any officer, director of Other Stockholder disapproves of the terms of any such underwriting, such that person shall also be excluded may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities shares of the Common Stock excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pulitzer Inc Voting Tr Under Agreement Dated March 18 1999), Registration Rights Agreement (Pulitzer Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.1(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 2.1 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 CompanyCompany and the other holders of securities of the Company proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, however(iii) third, that in no event shall to the other selling stockholders requesting to include other shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration statement based on the pro rata percentage of other than with respect to the Initial Public Offering, in which case shares held by such Holders’ requests can be reduced in their entiretyother selling stockholders. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.1(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, inclusion in the manner set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Q Comm International Inc), Registration Rights Agreement (Q Comm International Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i3.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 3.2 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 to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters underwriter(s) selected by the Company. Notwithstanding any other provision of this Section 2.23.2, if the representative of the underwriters advise advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. If the registration is the first firmly underwritten public offering made by the Company pursuant to an effective registration statement on form S-1 under the Securities Act (an "INITIAL PUBLIC OFFERING"), the Company may limit, to the extent so advised by the underwriters, the amount of securities (including Registrable Securities) to be included in the registration by the Company's shareholders (including the Holders), or may exclude, to the extent so advised by the underwriters, such underwritten securities entirely from such registration. If such registration is not a Initial Public Offering or is the second or any subsequent Company-initiated registered offering of the Company's securities to the general public, the Company may limit, to the extent so advised by the underwriters, the amount of securities to be included in the registration by the Company's shareholders (including the Holders); provided, however, that the aggregate value of securities (including Registrable Securities) to be included in such registration by the Company's shareholders (including the Holders) may not be so reduced to less than twenty-five percent (25%) of the total value of all securities included in such registration without the consent of more than fifty percent (50%) of the Holders. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, allocated first to the Company for securities being sold for its own account, and account (ii) second, subject to the Holders requesting to include Registrable Securities foregoing provisions of this paragraph) and thereafter as set forth in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretySection 3.12. If a any person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or the underwriter. The Any Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and or if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b)factors, the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, inclusion in accordance with the manner set forth aboveprovisions of Section 3.12 below.
Appears in 2 contracts
Sources: Investors Rights Agreement (Light Sciences Oncology Inc), Investors Rights Agreement (Light Sciences Oncology Inc)
Underwriting. If First Reserve intends to distribute the registration Registrable Securities covered by its request by means of which the Company gives notice is for a registered public offering involving an underwritingunderwritten offering, the Company then it shall so advise the Holders Company as a part of the written notice given pursuant to Section 2.2(a)(i)Demand Notice, and the Company shall include such information in the Request Notice. In such event, the right of any Holder to include its his Registrable Securities in a such registration pursuant to this the rights set forth in Section 2.2 2.3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent (unless otherwise mutually agreed by First Reserve and such Holder) as provided herein. All The Company and 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 representative of the managing underwriter or underwriters selected for such underwriting by the CompanyFirst Reserve. Notwithstanding any other provision of this Section 2.22.2 or Section 2.3, if the underwriters advise Board determines, after having consulted with the managing underwriter(s), determines in good faith that the Company in writing that marketing factors require should impose a limitation on of the number of shares securities to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders Holders of securities requesting registrationRegistrable Securities that would otherwise be registered and underwritten pursuant hereto, and the Company may exclude shares of the Registrable Securities as necessary from the registration and the underwriting, with the number of shares of securities that are entitled to be included in the registration and the underwriting shall be allocated, as followsallocated in the following manner: (i) first, first to First Reserve; second to the Company for securities being sold for its own account, Company; and (ii) second, third to each of the other Holders requesting to include inclusion of their Registrable Securities in such registration statement pursuant to Section 2.3, and among such other Holders on a pro rata basis based on the pro rata percentage total number of Registrable Securities then held by each such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to other Holder. No other Registrable Securities may be included in such registration the Registration Statement (other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or by the underwriterHolders pursuant to Section 2.3) without First Reserve's consent. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced If, as a result of marketing factors any reduction or limitation at the request of an underwriter, a registration effected pursuant to this Section 2.2(b2.2 does not include at least 80% of the Registrable Securities that First Reserve requested to be registered in the Demand Notice, such registration shall not constitute a demand for purposes of Section 2.2(d). For any Holder that is a partnership, the Company Holder and the partners and retired partners (if any) of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons, and for any Holder that is a corporation, the Holder and all corporations that are affiliates of such Holder, shall then offer be deemed to all persons who have retained be a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the right 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 withdrawnRegistrable Securities owned by all entities and individuals included in such "Holder, with such shares to be allocated among the persons requesting additional inclusion, " as defined in the manner set forth abovethis sentence.
Appears in 2 contracts
Sources: Stockholder Agreement (Dresser-Rand Group Inc.), Stockholder Agreement (Dresser-Rand Group Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting; provided that the number of shares of Registrable Securities that are entitled to be included in such registration shall not be reduced to less than twenty percent (20%) of the total number of securities included in such registration unless such registration is the Company’s Initial Public Offering, in which case all Registrable Securities may be excluded from such registration. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, howeverassuming conversion and (iii) third, that in no event shall to the shares Other Selling Shareholders requesting to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included include Other Shares in such registration other than with respect to statement based on the Initial Public Offeringpro rata percentage of Other Shares held by such Other Selling Shareholders, in which case such Holders’ requests can be reduced in their entiretyassuming conversion. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Ambarella Inc)
Underwriting. If the Company intends to distribute the Registrable Securities covered by its registration by means of which the Company gives notice is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.5(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 2.5 shall be conditioned upon such Holder’s participation in such underwriting underwritten offering and the inclusion of such Holder’s Registrable Securities in the underwriting underwritten offering to the extent provided herein. All The Company shall, together with all participating Holders and participating Third Party Holders of Registrable Securities of the Company (if any) proposing (and permitted) to distribute their securities through such underwriting shall (together with the Company) underwritten offering, enter into an underwriting agreement in customary form (containing such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type) with the representative of the managing underwriter or underwriters selected for such underwriting by the Company. Such underwriting agreement shall contain such representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the Holders and Third Party Holders party thereto as are customarily made by issuers to selling stockholders in secondary underwritten public offerings. No Holder or Third Party Holder shall be entitled to participate in such underwritten offering unless such Holder or Third Party Holder, as the case may be, completes and executes all questionnaires, powers of attorney, indemnities and other documents required under the terms of such underwriting agreement. Notwithstanding any other provision of this Section 2.22.5, if the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities included in a registration pursuant to this Section 2.5 (including an IPO) shall advise the Company and the Sponsor Holders that have requested to participate in writing such registration that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities requested to be included in such registration other than with respect to exceeds the Initial Public Offering, in number which case such Holders’ requests can be reduced in their entirety. If a person who has requested inclusion sold in such registration as provided above does not agree offering without being likely to have a significant adverse effect on the terms price, timing or distribution of any such underwriting, such person shall also be excluded therefrom by written notice from the Company securities offered or the underwriter. The Registrable Securities or other market for the securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if offered, then the number of shares of Registrable Securities to that may be included in such registration was previously reduced as shall be (1) first, 100% of the securities that the Company proposes to sell, (2) second, and only if all the securities referred to in clause (1) have been included, the number of Registrable Securities that the Sponsor Holders, Management Holders and Temasek Holders proposed to include in such registration, which, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect in such registration, with such number to be allocated pro rata among such Sponsor Holders, Management Holders and Temasek Holders that have requested to participate in such registration based on the relative number of Registrable Securities then held by each such Sponsor Holder, Management Holder and Temasek Holder (provided, that any securities thereby allocated to a result of marketing factors pursuant to this Section 2.2(bSponsor Holder, Management Holder or Temasek Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Sponsor Holders, Management Holders and Temasek Holders in like manner), (3) third, and only if all the securities referred to in clause (2) have been included, the number of Registrable Securities that the other Holders proposed to include in such registration, which, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect in such registration, with such number to be allocated pro rata among such other Holders that have requested to participate in such registration based on the relative number of Registrable Securities then held by each such Holder (provided, that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner) and (4) fourth, and only if all of the Registrable Securities referred to in clause (3) have been included in such registration, any other securities eligible for inclusion in such registration (including those of any Third Party Holder) that, in the opinion of the managing underwriter or underwriters, can be sold without having such adverse effect in such registration; provided, that notwithstanding the foregoing, (A) if the managing underwriter or underwriters of the IPO shall advise the Company and the Sponsor Holders that have requested to participate in the IPO that the sale of Shares by Management Holders in the IPO would be reasonably likely to have an adverse effect upon the price, timing or distribution of the IPO, then the Management Holders shall then offer to all persons who not have retained the right to include securities sell their Shares in the IPO) and (B) the shares of Registrable Securities that may be included in such registration the right to include additional securities in the registration in an aggregate amount equal shall be subject to the number Priority Sell-Down. No securities excluded from the underwriting by reason of shares so withdrawn, with the managing underwriter’s or underwriters’ marketing limitation shall be included in such shares to be allocated among the persons requesting additional inclusion, in the manner set forth aboveregistration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dell Technologies Inc), Registration Rights Agreement (Denali Holding Inc.)
Underwriting. If a registration statement referred to in the registration of which the Company gives notice Piggyback Notice is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Registrable Securities. In such event, the right of any such Holder to include its Registrable Securities in such a registration Registration pursuant to this Section 2.2 4.3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent as provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters Company shall so advise all Holders of Registrable Securities that would otherwise be registered and underwritten pursuant hereto, and the managing underwriter(s) may (exclude shares of the Registrable Securities from the registration and the underwriting, and subject to the limitations set forth below) exclude all Registrable Securities fromfollowing sentence, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to will be included in the registration and the underwriting shall be allocatedallocated among the Holders as set forth in Section 4.2. If the underwriting is not pursuant to Section 4.2, as follows: (i) first, the number of Registrable Securities that will be included in the registration and the underwriting shall be allocated first to the Company for and to any other holder of the Company's securities being sold for who has exercised a right to demand the registration of its own account, securities; and (ii) second, to each Holder and any other holders of Common Units that have requested to participate in the Holders requesting registration, including pursuant to include Registrable Securities contractual rights to participate in such registration statement registration, on a pro rata basis based on the pro rata percentage total number of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities or other Common Units requested to be included in such registration by each such Holder and each such other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyholder. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveregistration.
Appears in 2 contracts
Sources: Investor Rights Agreement (Acin LLC), Investor Rights Agreement (First Reserve Gp Ix Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Investors and Major Common Holders as a part of in the written notice given pursuant to Section 2.2(a)(i2.5(a). In such event, the right of any Holder the Investors and Major Common Holders to include its Registrable Securities participate in a registration such Registration pursuant to this Section 2.2 2.5 shall be conditioned upon such each Investor’s and Major Common Holder’s participation in such underwriting and the inclusion of such the Investor’s or Major Common Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders holders of Registrable Securities proposing to distribute their securities Registrable Securities through such underwriting shall (together with the CompanyCompany and other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters Underwriter’s Representative selected for such underwriting by the CompanyCompany and reasonably acceptable to the Investors. Notwithstanding any other provision of this Section 2.22.5, if the underwriters advise the Company Underwriter’s Representative determines in writing good faith that marketing market factors require a limitation on of the number of shares to be underwritten, the underwriters Underwriter’s Representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration Registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting sold shall be allocated, as followsallocated pursuant to the following priority: (i) first, to the Company for securities being sold for its own accountCompany, and (ii) second, to the CEE Common Holders requesting to include who have requested inclusion of Registrable Securities in such the Company’s registration statement and the underwriting, on a pro rata basis based on the pro rata percentage total number of Registrable Securities held by such CEE Common Holders, in an amount up to 1,000,000 CEE Merger Shares in the aggregate (the “CEE Base Shares”), if no other CEE Merger Shares have been registered under the Securities Act pursuant to the Shareholders Agreement, (iii) third, to the Investors and Major Common Holders who have requested inclusion of Registrable Securities in the Company’s registration and the underwriting, on a Fully Diluted basis; pro rata basis based on the total number of Registrable Securities held by such Investors or Major Common Holders, and (iv) fourth, to any other holder of Registrable Securities (including the CEE Common Holders for amounts in excess of the CEE Base Shares) who has requested to participate in the offering, provided, however, that if the Investors and Major Common Holders are so limited no party shall sell shares in such registration other than the Company, the CEE Common Holders or the Investors and Major Common Holders, if any, requesting to include their Shares in the registration. Notwithstanding the foregoing, no event such reduction shall reduce the shares to be sold by such amount of securities of the Investors and Major Common Holders be reduced included in the Registration below thirty percent (30%) of the total amount of securities included in such Registration (with at least five percent (5%) to be allocated to each of Sequoia Capital, Foundation Capital, Accel Partners, Madrone Capital and Canyon), unless such offering is the Company’s initial public offering and such Registration does not include shares of any other selling stockholders other than the CEE Common Holders, in which event any or all of the Registrable Securities of the Investors and Major Common Holders may be excluded in accordance with the immediately preceding sentence. In no event will shares of any other selling stockholder, other than the CEE Common Holders, be included in such registration other than with respect Registration under this Section 2.5 if such inclusion would reduce the number of shares which may be included by the Investors and Major Common Holders without written consent of Investors holding at least a majority of the Registrable Securities proposed to be sold in the offering by all Investors. Any Registrable Securities to be sold pursuant to the Initial Public Offeringunderwriters’ over-allotment option shall be allocated pursuant to the following priority: (i) first, any excluded Registrable Securities held by the CEE Common Holders up to the amount of the CEE Base Shares if no other CEE Merger Shares have been registered under the Securities Act pursuant to the Shareholders Agreement, (ii) second, any excluded Registrable Securities held by the Investors and Major Common Holders and (iii) third, any Registrable Securities held by any other person participating in which case such the underwriting. The number of securities includable by the Investors, Major Common Holders’ requests can , CEE Common Holders or any other person may in the discretion of the underwriters, be reduced in their entiretyrounded to the nearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to Registration disapproves of the terms of any such underwriting, such person shall also be excluded may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationUnderwriter’s Representative. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from the Company’s registration statement; provided, however, that if by the withdrawal of such registration. If shares are so withdrawn from the registration and if the Registrable Securities a greater number of shares of Registrable Securities to held by other CEE Common Holders, Investors and Major Common Holders may be included in such registration was previously reduced as a result of marketing factors pursuant to Registration under this Section 2.2(b2.5 (up to the maximum of any limitation imposed by the underwriters), then the Company shall then offer to all persons CEE Common Holders, Investors and Major Common Holders who have retained the right to include securities included Registrable Securities in the registration Registration the right to include additional securities Registrable Securities in the registration same proportion used above in an aggregate amount equal to determining the underwriters’ limitation. If the Underwriter’s Representative has not limited the number of shares so withdrawn, with such shares to be allocated among underwritten for the persons requesting additional inclusionCompany’s account and the account of the CEE Common Holders, in Investors and Major Common Holders, the manner set forth aboveCompany may include securities for the account of employees, officers, directors and consultants.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Sunrun Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i5(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.25, if the underwriters advise managing underwriter advises the Company in writing that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter may limit to whatever extent necessary (subject to including the limitations set forth below) exclude complete exclusion of all Registrable Securities from, or limit Securities) the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to by reducing the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include number of Registrable Securities in such registration statement included on behalf of the Holders, on a pro-rata basis based on the pro rata percentage total number of Registrable Securities entitled to registration held by each Holder. The Company shall advise all Holders of Registrable Securities which would otherwise be registered and underwritten pursuant hereto of any such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretylimitations. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall not be withdrawn from included in such registration. If To facilitate the allocation of shares are so withdrawn from in accordance with the registration and if above provisions, the Company or the underwriters may round the number of shares of Registrable Securities allocated to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal any Initiating Holder or Other Holder to the number of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion, in the manner set forth abovenearest one hundred (100) shares.
Appears in 2 contracts
Sources: Series C Preferred Stockholders' Rights Agreement (Goto Com Inc), Series D Preferred Stockholders' Rights Agreement (Goto Com Inc)
Underwriting. If the a registration of statement under which the Company gives notice under this Section 2.4 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Registrable Securities. In such event, the right of any Holder to include its such Holder's Registrable Securities to be included in a registration pursuant to this Section 2.2 2.4 shall be conditioned upon such Holder’s 's participation in such underwriting pursuant to the terms of the underwritten offering set forth therein 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 Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter(s) may exclude shares (subject including up to seventy percent (70%) of the limitations set forth belowRegistrable Securities) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, from the registration and the underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) first, first to the Company for securities being sold for its own accountCompany, and (ii) second, to each of the Holders requesting to include inclusion of their Registrable Securities in such registration statement on a pro rata basis based on the pro rata percentage total number of Registrable Securities then held by each such Holders on a Fully Diluted basisHolder; provided, however, that the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that (i) the number of Registrable Securities included in no event shall the shares to be sold by any such Holders be registration is not reduced below thirty percent (30%) of the total amount aggregate number of Registrable Securities for which inclusion has been requested; and (ii) all shares that are not Registrable Securities and are held by any other person, including, without limitation, any person who is an employee, officer or director of the Company (or any subsidiary of the Company, which shall be defined to mean those entities in which the Company directly or indirectly owns or controls in excess of 50% of the equity securities to or voting power) shall first be included in excluded from such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyand underwriting before any Registrable Securities are so excluded. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration registration. For any Holder that is a partnership, the Holder and if the number partners and retired partners of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons, and for any Holder that is a corporation, the Holder and all corporations that are affiliates of such Holder, shall be deemed to be a single "Holder," and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares of Registrable Securities to be carrying registration rights owned by all entities and individuals included in such registration was previously reduced "Holder," as a result of marketing factors pursuant to defined in this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovesentence.
Appears in 2 contracts
Sources: Preferred Stock Investors Rights Agreement (WiderThan Co., Ltd.), Merger Agreement (WiderThan Co., Ltd.)
Underwriting. (i) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i4(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 to the extent provided herein. All .
(ii) The Company shall (together with all Holders 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 representative thereof selected by the Company. Notwithstanding any other provision of this Section 2.24, if the underwriters advise Underwriter or representative thereof advises the Company in writing that that, in its opinion, marketing factors require a limitation on the number of shares to be underwritten, the underwriters underwriter or representative thereof may (subject to the limitations allocation priority set forth below), (A) if the registration of which the Company gives notice is for the first registered public offering of securities of the Company, exclude all of the Holders' Registrable Securities fromprovided that no other selling shareholders' shares are included in the offering, or (B) in any other event, limit the number of the Holders' Registrable Securities and securities being registered by any other selling shareholders to be included in, in the registration and underwriting to an amount not less than thirty percent (30%) of the total number of shares being registered in such registration and underwriting. The If such limitation is required, the Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, allocated first to the Company for securities being sold for its own account, and (ii) second, to then in the following manner: the Registrable Securities of the Holders requesting to include Registrable Securities joining in such the request for registration statement based on and the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares securities to be sold by other selling shareholders participating in the registration shall be excluded from such Holders be reduced below thirty percent registration in the ratio of eighty (30%80) to twenty (20) so that 80% of the total amount of securities to be shares included in such the registration (other than with respect to Company shares) are Registrable Securities of the Initial Public Offering, Holders and 20% are shares owned by other shareholders joining in which case such Holders’ requests can be reduced in their entirety. the registration.
(iii) If a person who has requested inclusion in such registration as provided above does not agree to any Holder of Registrable Securities or any other stockholder disapproves of the terms of any such underwriting, such person shall also be excluded stockholder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (HLM Design Inc), Registration Rights Agreement (HLM Design Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i1.5(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 1.5 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 to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the other holders of securities of the Company distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.21.5, if the representative of the underwriters advise advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, and the underwriters Company so advises the Holders of Registrable Securities, the representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company ; PROVIDED, HOWEVER, that such underwriting limitation shall so advise all holders of securities requesting registrationbe applied first to exclude shares that are not Registrable Securities, and the number any balance of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold excluded then shall be allocated pro rata among the Holders of Registrable Securities in proportion to the number of Registrable Securities requested by each such Holders be reduced below thirty percent (30%) of the total amount of securities Holder to be included in such registration and underwriting, except that the underwriter's representative may (i) in the case of the Company's initial registered public offering, exclude some or all Registrable Securities from such registration and underwriting on a pro rata basis as described above and (ii) in the case of any subsequent registered public offering (other than with respect a registered public offering effected pursuant to Section 1.4), not limit the Initial Public Offering, in which case such Holders’ requests can number of shares of Registrable Securities to be reduced in their entirety. If a person who has requested inclusion included in such registration as provided above and underwriting to less than thirty-five percent (35%) of the securities included in such public offering (based on aggregate market values). If any person does not agree to the terms of any such underwriting, such person he shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and or if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b)factors, the Company shall then offer to all persons who have retained the right 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 . Any Registrable Securities so withdrawn shall be subject to be allocated among the persons requesting additional inclusion, in the manner set forth abovemarket standoff provisions of Section 1.14 hereof.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Zapme Corp), Investors' Rights Agreement (Zapme Corp)
Underwriting. If the registration of which the Company gives notice pursuant to Section 2.5(a) is for a registered public offering involving an underwriting, the Company shall so advise the Holders and Third Party Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.5(a). In such event, event the right of any Holder or Third Party Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 2.5 shall be conditioned upon such Holder’s or Third Party Holder’s, as applicable, participation in such underwriting and the inclusion of such Holder’s or Third Party Holder’s, as applicable, Registrable Securities in the underwriting to the extent provided herein. All Holders and Third Party Holders proposing to distribute their Registrable Securities through such underwriting, together with the Company and the other parties distributing their securities through such underwriting underwriting, shall (together with the Company) enter into (subject to the Information Protections and the Transfer Protections) an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company; provided, that such determination is made in reasonable consultation with all Major Investors participating in the offering and the Company. Notwithstanding any other provision of this Section 2.22.5, if the underwriters shall advise the Company in writing that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation on of the number of shares to be underwritten, then the underwriters Company may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting, subject to the terms of this Section 2.5. The Company shall so advise all holders Holders and Third Party Holders of securities requesting registrationRegistrable Securities that have requested to participate in such offering, and the number of shares of securities Registrable Securities that are entitled to may be included in the registration and underwriting shall be allocated, as followsallocated in the following manner: (i) first, to the Company for securities being sold for its own accountCompany, and (ii) second, to the participating Holders requesting on a Pro Rata Basis among them and, third, to include Registrable Securities in such registration statement based the participating Third Party Holders on the a pro rata percentage basis in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held (directly or indirectly through any fund) by such Third Party Holders on a Fully Diluted basis; provided, however, that at the time of such registration and underwriting. No such reduction shall reduce the amount of securities of the selling Holders and Third Party Holders included in no event shall the shares to be sold by such Holders be reduced registration below thirty twenty-five percent (3025%) of the total amount of securities to included in such registration, unless such offering does not include shares of any other selling stockholders, in which event any or all of the Registrable Securities of the Holders and Third Party Holders may be excluded from such underwriting in accordance with the immediately preceding sentence. No securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from For the registration and if avoidance of doubt, nothing in this Section 2.5(b) is intended to diminish the number of shares of Registrable Securities securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), by the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveunderwriting.
Appears in 2 contracts
Sources: Registration Rights Agreement (Medline Inc.), Registration Rights Agreement (Medline Inc.)
Underwriting. If the registration Holder(s) intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to this Section 2.2 and the Company shall include such information in the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting such registration to the extent provided herein. All 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 by such Holders that hold a majority in interest of the Registrable Securities to be registered in such registration, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to and other Shares that may be so included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, allocated as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders; provided(ii) second, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public OfferingCompany, in which case such Holders’ requests can be reduced in their entiretyfor its own account; and (iii) to other selling stockholders holding other Shares. 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 also be excluded therefrom by written notice from the Company Company, the underwriter, or the underwriterHolder(s). The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares Shares are so withdrawn from the registration and if the number of shares of Registrable Securities Shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.2(d), then the Company shall then offer to all persons Holders who have retained the right rights to include securities in the registration the right to include additional securities Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons such Holders requesting additional inclusion, in the manner as set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Q Comm International Inc), Registration Rights Agreement (Q Comm International Inc)
Underwriting. If the a registration of statement under which the Company gives notice under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Registrable Securities. In such event, the right of any Holder to include its such Holder's Registrable Securities to be included in a registration pursuant to this Section 2.2 2.3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters underwriter(s) selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter(s) may exclude shares (subject to the limitations set forth belowincluding Registrable Securities) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, from the registration and the underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) firstFIRST, to the Company for securities being sold for its own accountCompany, and (ii) secondSECOND, to each of the Holders requesting to include inclusion of their Registrable Securities in such registration statement on a pro rata basis based on the pro rata percentage total number of Registrable Securities then held by each such Holders on a Fully Diluted basisHolder; providedPROVIDED, howeverHOWEVER, that the right of the underwriters to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that (i) the number of Registrable Securities included in no event shall the shares to be sold by any such Holders be registration is not reduced below thirty percent twenty-five (3025%) of the total amount shares included in the registration, except for a registration relating to the Company's intital public offering from which all Registrable Securities may be excluded, (ii) if the registration and the underwriting are in connection with the Company's initial public offering, no party shall sell shares in such initial public offering other than the Company or the Holder(s), if any, invoking a demand registration under Section 2.2 above and (iii) no shareholder of securities the Company shall be granted registration rights under this Section 2.3 if inclusion of such shares would reduce the number of shares of Registrable Securities of the Holders to be included in such registration other than with respect to without the Initial Public Offering, in which case such consent of the Holders of fifty-percent (50%) of the Registrable Securities then held by the Holders’ requests can be reduced in their entirety. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration registration. For any Holder which is a partnership or corporation, the partners, retired partners and if shareholders of such Holder, or the number estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "Holder", and any pro rata reduction with respect to such "Holder" shall be based upon the aggregate amount of shares of Registrable Securities to be carrying registration rights owned by all entities and individuals included in such registration was previously reduced "Holder", as a result of marketing factors pursuant to defined in this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovesentence.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Silicon Image Inc), Investors' Rights Agreement (Silicon Image Inc)
Underwriting. If the registration Initiating Investors intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to Section 2.4 and the Company shall include such information in the written notice given pursuant to the other Investors referred to in Section 2.2(a)(i2.4(a)(i). In such eventIf the Initiating Investors choose to use an underwriter, the right of any Holder Investor to include its Registrable Securities in a registration pursuant to this Section 2.2 2.4 shall be conditioned upon such Holderthe Investor’s participation in such underwriting and the inclusion of such Holderthe Investor’s Registrable Securities in the underwriting to the extent provided herein. All Holders The Company (together with the Investors and other parties proposing to distribute their securities through such underwriting underwriting) shall (together with the Company) enter into an underwriting agreement in customary form with the representative representative(s) of the underwriter or underwriters underwriter(s) (collectively, the “Underwriter’s Representative”) selected for such underwriting by a majority of the CompanyInvestors. Notwithstanding any other provision of this Section 2.22.4, if the underwriters advise the Company Underwriter’s Representative notifies in writing the Company, the Initiating Investors and other holders of Registrable Securities participating in the underwriting that marketing it has determined in good faith that market factors require a limitation on of the number of shares to be underwritten, the underwriters Underwriter’s Representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of shares of Registrable Securities to be included in, in the registration Registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration Registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders among all Investors requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisInvestors, assuming conversion; provided(ii) second, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) other stockholders of the total amount Company who may have registration rights; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. The number of securities to be included by the Investors or any other holders of Registrable Securities may, in the discretion of the underwriters, be rounded to the nearest one hundred (100) shares. No securities excluded from the underwriting by reason of the underwriter’s market limitation shall be included in such registration Registration, provided that any excluded Registrable Securities held by the Investors shall be sold to the underwriters pursuant to the underwriters’ over-allotment option before any Registrable Securities held by holders other than with respect to the Initial Public Offering, Investors are sold in which case such Holders’ requests can be reduced in their entiretyoffering. If a person who has requested inclusion in such registration as provided above does not agree to Registration disapproves of the terms of any such underwriting, such person shall also be excluded may elect to withdraw therefrom by written notice from to the Company or and the underwriterUnderwriter’s Representative. The Registrable Securities or and/or other securities so excluded shall also held by such Investor and proposed to be withdrawn from sold in such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting offering shall be withdrawn from Registration; provided, however, that, if by the withdrawal of such registration. If shares are so withdrawn from the registration and if the Registrable Securities, a greater number of shares of Registrable Securities to held by other holders participating in the underwriting may be included in such registration was previously reduced as a result Registration (up to the maximum of marketing factors pursuant to this Section 2.2(bany limitation imposed by the Underwriter’s Representative), then the Company shall then offer to all persons Investors who have retained the right to include securities in the registration Registration the right to include additional securities in the registration Registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons Investors requesting additional inclusion, inclusion in the manner set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (MaxPoint Interactive, Inc.), Investors’ Rights Agreement (MaxPoint Interactive, Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i6(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 6 shall be conditioned upon such Holder’s '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 CompanyCompany and the other holders distributing their securities through such underwriting) enter into and perform its obligations under an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the CompanyCompany (or by the holders who have demanded such registration). Notwithstanding any other provision of this Section 2.26, if the underwriters advise managing underwriter provides written notice to the Company Holders that it has determined that the inclusion of all of the shares requested to be included in writing that marketing factors require a limitation on the offering would adversely effect the price at which the shares can be sold, the managing underwriter shall include in the offering the maximum number of shares that may be included in the offering without such adverse effect as follows (i) first, the shares requested to be underwrittensold by the Company or the holder of securities initiating the registration, (ii) second, the underwriters may (subject shares requested to be included in the limitations set forth below) exclude all Registrable Securities from, or limit offering by the Holders pro rata based on the number of Registrable Securities held, and (iii) third, any other shares requested to be included inincluded. To facilitate the allocation of shares in accordance with the above provisions, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and or the underwriters may round the number of shares of securities that are entitled allocated to be included in the registration and underwriting shall be allocated, as follows: (i) first, any Holder or other holder to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretynearest 100 shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or other holder disapproves of the terms of any such underwriting, such person shall also be excluded he or she may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Investor Rights Agreement (Eloyalty Corp), Investor Rights Agreement (Eloyalty Corp)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(iSubsection 2.6(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 Subsection 2.6 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 CompanyCompany and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the CompanyCompany (or by the Holders who have demanded such registration, as the case may be). Notwithstanding any other provision of this Section 2.2Subsection 2.6, if the underwriters advise the Company managing underwriter determines in writing its sole discretion that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting. The Company shall so advise all holders , on a pro rata basis based on the total number of securities requesting registration(including, and the number of shares of securities that are without limitation, Registrable Securities owned by each participating Holder) entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisregistration; provided, however, that but in no event shall the shares to be sold by such amount of securities of the participating Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to offering, unless such offering is the Initial Public Offeringinitial public offering of the Company’s securities, in which case such Holders’ requests can the participating Holders may be reduced entirely excluded if the managing underwriter makes the determination described above and no other stockholder’s securities are included. To facilitate the allocation of shares in their entiretyaccordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder or other holder to the nearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or other holder disapproves of the terms of any such underwriting, such person shall also be excluded he or she may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from , and shall not be transferred in a public distribution prior to ninety (90) days (one hundred eighty (180) days in the registration and if case of the number Company’s initial public offering) after the date of shares of Registrable Securities to be the final prospectus included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovestatement relating thereto.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Syndax Pharmaceuticals Inc)
Underwriting. If the a registration of statement with respect to which the Company gives notice under this Section 2.2 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of in the written notice given pursuant to Section 2.2(a)(i)Piggyback Notice. In such event, the right of any Holder to include its such Holder’s Registrable Securities to be included in a registration pursuant to this Section 2.2 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 Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting (including a market stand-off agreement of up to 180 days if required by the Companysuch underwriter or underwriters). Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter(s) may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, shares from the registration and underwriting. The Company shall so advise all holders of securities requesting registrationthe underwriting (such exclusion, a “Cutback”), and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) first, first to the Company for securities being sold for its own accountCompany, and (ii) second, to each of the Holders requesting to include inclusion of their Registrable Securities in such registration statement on a pro rata basis with any other holders of securities of the Company participating in such registration based on the pro rata percentage total number of Registrable Securities then held by each such Holders on a Fully Diluted basisHolder and other holders of securities of the Company; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) right of the total amount underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that, subject to the rights of securities to any holders granted registration rights on par with the rights provided for in this Section 2.2, all shares that are not Registrable Securities and are held by any other Person, including, without limitation, any Person who is an employee, officer or director of the Company (or any subsidiary of the Company) shall first be included in excluded from such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyand underwriting before any Registrable Securities are so excluded. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registrationreapportioned so that the registration includes Registrable Securities that were previously requested by a Holder but excluded pursuant to the Cutback. If shares all the Registrable Securities requested by the Holders have been included, the other shareholders of the Company may include any Ordinary Shares on a pro rata basis. For any Holder that is a partnership, the Holder and the partners and retired partners of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing Persons, and for any Holder that is a corporation, the Holder and all corporations that are so withdrawn from Affiliates of such Holder, shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the registration and if the number aggregate amount of shares of Registrable Securities to be carrying registration rights owned by all Persons included in such registration was previously reduced “Holder,” as a result of marketing factors pursuant to defined in this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovesentence.
Appears in 2 contracts
Sources: Shareholders Agreement (Stratus Technologies Bermuda Holdings Ltd.), Shareholder Agreements (Stratus Technologies International Sarl)
Underwriting. (a) If the a registration of statement with respect to which the Company gives notice under this Section 8 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of in the written notice given pursuant to Section 2.2(a)(i)Piggyback Notice. In such event, the right of any Holder to include its such Holder’s Registrable Securities to be included in a registration pursuant to this Section 2.2 8 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 Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting (including a market stand-off agreement of up to 180 days if required by the Companysuch underwriter or underwriters). Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter(s) may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, shares from the registration and underwriting. The Company shall so advise all holders of securities requesting registrationthe underwriting (such exclusion, a “Cutback”), and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) first, first to the Company for securities being sold for its own accountCompany, and (ii) second, to each of the Holders requesting to include inclusion of their Registrable Securities in such registration statement pursuant to this Section 8 on a pro rata basis with any other holders of securities of the Company participating in such registration based on the pro rata percentage total number of Registrable Securities then held by each such Holders Holder (calculated on a Fully Diluted an as-converted basis) and other holders of securities of the Company; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) right of the total amount of securities underwriter(s) to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The exclude shares (including Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn Securities) from the registration and if underwriting as described above shall be restricted so that, subject to the number rights of any holders granted registration rights on par with the rights provided for in this Section 8, all shares that are not Registrable Securities and are held by any other Person, including, without limitation, any Person who is an employee, officer or director of the Company (or any subsidiary of the Company) shall first be excluded from such registration and underwriting before any Registrable Securities are so excluded. If all the Registrable Securities requested by the Holders have been included, the other shareholders of the Company may include any Ordinary Shares on a pro rata basis. For any Holder that is a partnership, the Holder and the partners and retired partners of such Holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing Persons, and for any Holder that is a corporation, the Holder and all corporations that are Affiliates of such Holder, shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares of Registrable Securities to be carrying registration rights owned by all Persons included in such registration was previously reduced “Holder,” as a result of marketing factors pursuant to defined in this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovesentence.
Appears in 2 contracts
Sources: Subscription and Shareholders Agreement (Stratus Technologies Bermuda Holdings Ltd.), Second Lien Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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, the Other Selling Stockholders and other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company Notwithstanding the foregoing, no such reduction shall so advise all holders reduce the value of securities requesting registration, and the number Registrable Securities of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities included in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty twenty-five percent (3025%) of the total amount value of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyregistration. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Ceribell, Inc.), Investors’ Rights Agreement (Ceribell, Inc.)
Underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.2(a)(i2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.2 2.1 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 The Company shall (together with all Holders 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 by the Company, which underwriters are reasonably acceptable to a majority-in interest of the Initiating Holders. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to that may be so included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the allocated among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyassuming conversion. 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 also be excluded therefrom by written notice from the Company Company, the underwriter or the underwriterInitiating Holders. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.1(d), then the Company shall then offer to all persons Holders who have retained the right rights to include securities in the registration the right to include additional securities Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons such Holders requesting additional inclusion, in the manner as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Achaogen Inc), Investors’ Rights Agreement (Achaogen Inc)
Underwriting. (i) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(isubsection 1.2(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 subsection 1.2 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. Notwithstanding the foregoing, if the Company proposes to commence an underwriting with respect to shares of its common stock and shall not have otherwise been required to deliver a notice of the registration to the Holders of its Registrable Securities pursuant to the last sentence of subsection 1.2(a), the Company shall deliver a written notice of such underwriting at least 10 days prior to the commencement of such underwriting and provide the Holders an opportunity to participate in such underwriting in accordance with this subsection 1.2(b). The Company shall, subject to subsection 1.2(b)(ii) below, include the Registrable Securities of any Holder in such underwriting that specifies in a written request or requests, made within 5 days after receipt of such written notice from the Company. All Holders proposing to distribute their securities Registrable Securities through any such underwriting pursuant to this subsection 1.2(b) shall (together with the CompanyCompany and the other shareholders distributing their shares of common stock through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. .
(ii) Notwithstanding any other provision of this Section 2.2subsection 1.2, if the underwriters advise the Company in writing underwriter managing such public offering determines that marketing factors require a limitation on of the number of shares of common stock to be underwritten, and (A) if such registration is the underwriters may (subject first registered offering of the sale of the Company’s common stock to the limitations set forth below) exclude all Registrable Securities fromgeneral public, or the underwriter may limit the number of Registrable Securities to be included in, in the registration and underwriting, or may exclude Registrable Securities entirely from such registration and underwriting, or (B) if such registration is other than the first registered offering of the sale of the Company’s common stock to the general public, the underwriter may limit the amount of Registrable Securities to be included in the registration and underwriting by the Company’s shareholders; provided, however, the number of Registrable Securities to be included in such registration and underwriting under this subsection 1.2(b)(ii) shall not be reduced to less than thirty percent (30%) of the aggregate shares of common stock included in such underwriting without the prior consent of at least a majority of the Holders who have requested their Registrable Securities to be included in such underwriting. The Company shall so advise all holders Holders of securities requesting registrationRegistrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of securities Registrable Securities that are entitled to may be included in the registration and underwriting shall be allocatedallocated among Holders requesting inclusion in such underwriting in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by each of such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) as of the total amount date of securities the notice pursuant to subsection 1.2(a)(i) above; provided that the number of shares of Registrable Securities requested to be included in such registration underwriting shall not be reduced unless all other shares of common stock being sold by shareholders other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyHolders are first entirely excluded from the underwriting. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Calibre Energy, Inc.), Registration Rights Agreement (Calibre Energy, Inc.)
Underwriting. If the registration of which the Company gives ------------ notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i3.6(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 3.6 shall be conditioned upon such Holder’s '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 CompanyCompany and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.23.6, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter and the Company may (subject to reduce the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in such registration to the registration and underwritingextent the underwriters deem necessary. The Company shall so advise all Holders and other holders of distributing their securities requesting registration, through such underwriting and the number of shares of securities Registrable Securities that are entitled to may be included in the registration and underwriting shall be allocatedallocated among all the Holders in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basisHolder at the time of filing the Registration Statement; provided, however, that in no event shall the shares Registrable Securities to be sold included by such the -------- ------- participating Holders in the aggregate shall not be reduced below thirty to less than twenty- five percent (3025%) of the total amount number of securities shares to be included registered in such registration other than registration; provided further, however, that the foregoing provision regarding ---------------- ------- the twenty-five percent (25%) limitation shall not apply in the event of the Company's initial public offering. To facilitate the allocation of shares in accordance with respect the above provisions, the Company may round the number of shares allocated to any Holder or holder to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretynearest 100 shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or holder disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from , and shall not be transferred in a public distribution prior to one hundred eighty (180) days after the effective date of the registration and if statement relating thereto, or such other shorter period of time as the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveunderwriters may require.
Appears in 2 contracts
Sources: Shareholder Rights Agreement (Talk City Inc), Shareholder Rights Agreement (Talk City Inc)
Underwriting. If the registration of for which the Company gives notice is for a registered public offering involving an underwriting, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i3.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 3.2 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 to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.23.2, if the underwriters advise underwriters' representative advises the Company in good faith and in writing (which notice the Company, in turn, shall promptly provide to all Holders requesting registration) that marketing factors require a limitation on the number of shares to be underwritten, then the underwriters representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) allocated first, to the Company for securities being sold for its the Company's own accountaccount and thereafter, and (ii) second, to the Holders requesting to include Registrable Securities as set forth in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretySection 3.12. If a person who has requested inclusion in such registration as provided above any Person does not agree to the terms of any such underwriting, then such person Person shall also be excluded therefrom from the underwriting by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting in accordance with the terms hereof shall be withdrawn from such registration. If To facilitate the allocation of shares are so withdrawn from in accordance with the registration and if foregoing provisions, the Company or the underwriter(s) may round the number of shares allocated to any Holder to the nearest 100 shares. If shares are excluded because a Person does not agree to the terms of Registrable Securities to be included in any such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b)underwriting, then the Company shall then offer to all persons Persons who have retained the right 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 withdrawnexcluded, with such shares to be allocated among the persons Persons requesting additional inclusion, inclusion in the manner set forth aboveaccordance with Section 3.12.
Appears in 2 contracts
Sources: Subscription and Investor Rights Agreement (Life Sciences Research Inc), Subscription and Investor Rights Agreement (Life Sciences Research Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders Holders, assuming conversion and (iii) third, to any other stockholder requesting to include shares held by such stockholder in such registration statement based on a Fully Diluted basis; providedthe pro rata percentage of shares held by such stockholders, howeverassuming conversion. Registration Rights Agreement re Crispr Therapeutics AG 10 Notwithstanding the foregoing, that in no event shall the shares to be sold by such Holders number of Registrable Securities included in the offering be reduced below thirty twenty percent (3020%) of the total amount number of securities to be included in such registration other than with respect to offering, unless such offering is the Initial Public OfferingIPO, in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other stockholder’s securities are included in such Holders’ requests can be reduced in their entiretyoffering. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (CRISPR Therapeutics AG)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i1.3(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 1.3 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 CompanyCompany and any Other Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.21.3, if the representative of the underwriters advise advises the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters representative may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registrationHolders, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, allocated as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders Investors requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders Investors, on a Fully Diluted an as-converted to Common Stock basis; provided, however(iii) third, that to the Founders requesting to include Common Stock in such registration statement based on the pro rata percentage of Common Stock held by such Founders, and (iv) fourth, to Other Stockholders requesting to include their securities in such registration statement based on the pro rata percentage of the securities held by such Other Stockholders. Notwithstanding the foregoing, in no event shall the shares amount of securities of the Holders requesting to be sold by include Registrable Securities in such Holders registration statement be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to offering, unless such offering is the Initial Public Offeringinitial public offering of the Company’s securities, in which case the selling Holders may be entirely excluded if the underwriters make the determination that marketing factors require a limitation on the number of shares to be underwritten and no other stockholder securities are included in such Holders’ requests can be reduced in their entiretyoffering. If a person who has requested inclusion in such registration as provided above any Holder or Other Stockholder does not agree to the terms of any such underwriting, such person Holder or Other Stockholder shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If To facilitate the allocation of shares are so withdrawn from in accordance with the registration and if above provisions, the Company or the underwriter(s) may round the number of shares of Registrable Securities allocated to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal any Holder to the number of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion, in the manner set forth abovenearest 100 shares.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Varonis Systems Inc), Investors’ Rights Agreement (Varonis Systems Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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, the Other Selling Stockholders and other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company; provided, however, that the liability of each Holder of Registrable Securities in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (i) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of, and relating to, such Holder expressly for inclusion therein and (ii) shall not in any event exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions paid by such Holder) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such registration. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders Holders, assuming conversion and (iii) third, to the Other Selling Stockholders requesting to include Other Shares in such registration statement based on a Fully Diluted basis; providedthe pro rata percentage of Other Shares held by such Other Selling Stockholders, howeverassuming conversion. Notwithstanding the foregoing, that in no event shall (i) the shares number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by such Holders the Company) are first entirely excluded from the offering or (ii) the number of Registrable Securities included in the offering be reduced below thirty twenty-five percent (3025%) of the total amount number of securities to be included in such registration other than with respect to offering, unless such offering is the Initial Public Offering, in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other stockholder’s securities are included in such Holders’ requests can be reduced in their entiretyoffering. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Eargo, Inc.), Investors’ Rights Agreement (Eargo, Inc.)
Underwriting. (i) If the registration of for which the Company Corporation gives notice is for a registered public offering involving an underwriting, the Company Corporation shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCorporation and any Other Selling Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Corporation.
(ii) Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company Corporation in writing that marketing factors require a limitation on the number of shares Shares to be underwritten, the Corporation and the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities Shares to be included in, in the registration and underwriting. The Company Corporation shall so advise all holders Holders of securities Registrable Securities requesting registration, and the number of shares of securities Shares that are entitled to be included in the registration and underwriting shall be allocated, allocated as follows: (iA) first, to the Company Corporation for securities being sold for its own account, ; and (iiB) second, to among the Holders requesting to include Registrable Securities in such registration statement Registration Statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders; provided, however, that in no event shall the shares any Registrable Securities be excluded from such offering unless all Shares proposed to be sold by registered for the account of Other Selling Stockholders have first been excluded. Notwithstanding the foregoing, no such reduction shall reduce the value of the Registrable Securities of the Holders be reduced included in such registration below thirty twenty-five percent (3025%) of the total amount value of securities to be included in such registration other than registration. For purposes of the preceding sentence concerning apportionment, for any selling stockholder that is a Holder and that is a venture capital or private equity fund, partnership, limited partnership, limited liability company or corporation, the affiliated venture capital or private equity funds, partners, retired partners, members, retired members, managers, retired managers, managing members, retired managing members and stockholders of such Holder, or the estates and family members of any such partners or retired partners, members and retired members, managers and retired managers, managing members and retired managing members, and any trusts for the benefit of any of the foregoing Persons shall be deemed to be a single selling Holder, and any pro rata reduction with respect to such selling Holder shall be based upon the Initial Public Offering, in which case aggregate amount of Registrable Securities owned by all such Holders’ requests can be reduced in their entirety. related entities and individuals.
(iii) If a person Person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person Person shall also be excluded therefrom by written notice from the Company Corporation or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (OneStream, Inc.), Registration Rights Agreement (OneStream, Inc.)
Underwriting. If reasonably required to maintain an orderly market in the Common Stock, the Holders shall distribute the Registrable Securities covered by their demand by means of an underwriting. If the registration Initiating Holders intend to distribute the Registrable Securities covered by their demand by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their demand made pursuant to this Section 2.2, including the identity of the managing underwriter; and the Company shall include such information in the written notice given pursuant referred to in Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 The Company shall, together with all holders of capital stock of the Company 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 by the Company, which underwriter or underwriters shall be reasonably acceptable to a majority-in-interest of the Initiating Holders. Notwithstanding any other provision of this Section 2.2, if the underwriters underwriter shall advise the Company in writing that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation on of the number of shares to be underwrittenunderwritten (including Registrable Securities) (the “Underwriters’ Maximum Number”), then the underwriters may (subject Company will be obligated and required to the limitations set forth below) exclude all include in such registration that number of Registrable Securities fromrequested by all Holders to be included in such registration, or limit which does not exceed the Underwriters’ Maximum Number, and such number of Registrable Securities shall be allocated pro rata among the Holders of such Registrable Securities on the basis of the number of Registrable Securities requested to be included in, the registration and underwritingtherein by each such Holder. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include No Registrable Securities in such registration statement based on excluded from the pro rata percentage of Registrable Securities held underwriting by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) reason of the total amount of securities to underwriter’s marketing limitation shall be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyregistration. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such the underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or Company, the underwriterunderwriter and the Initiating Holders. The Registrable Securities or other securities so excluded withdrawn shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Investor Rights Agreement (Aldagen Inc), Investor Rights Agreement (Aldagen Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion. Notwithstanding the foregoing, no such reduction shall reduce the value of the Registrable Securities of the Holders on a Fully Diluted basis; provided, however, that included in no event shall the shares to be sold by such Holders be reduced registration below thirty twenty five percent (3025%) of the total amount value of securities to be included in such registration other than with respect to registration, unless such offering is the Initial Public OfferingOffering and such registration does not include shares of any other selling stockholders (excluding shares registered for the account of the Company), in which case event any or all of the Registrable Securities of the Holders may be excluded. For the avoidance of doubt, no Registrable Securities held by any Holder will be excluded from any registration unless all other securities held by any other stockholder of the Company are first entirely excluded from such Holders’ requests can be reduced in their entiretyregistration. If a person Person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person Person shall also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons Persons who have retained the right 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 the persons Persons requesting additional inclusion, in the manner order set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Aardvark Therapeutics, Inc.), Investors’ Rights Agreement (Aardvark Therapeutics, Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting; provided that the foregoing limitation may only be applied after the Company has excluded from such registration all securities held by holders other than holders of Registrable Securities that the Company intends to include in such registration; and provided further following the Company’s Initial Public Offering, the number of Registrable Securities to be included in any such registration shall not be reduced below twenty percent (20%) of the number of shares to be underwritten. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, account and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn or excluded from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b)factors, the Company shall then use its commercially reasonable efforts to offer to all persons who have retained the right to include securities in the such registration the right to include additional securities in the next registration in an aggregate amount equal to the number of shares so withdrawnwithdrawn or excluded, with such shares to be allocated pro rata among the persons requesting additional inclusion, inclusion in the manner set forth aboveaccordance with Section 2.2 hereof.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Cardiva Medical, Inc.), Investors’ Rights Agreement (Cardiva Medical, Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders Holders, assuming conversion and (iii) third, to the other Other Selling Stockholders requesting to include Other Shares in such registration statement based on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold pro rata percentage of Other Shares held by such Other Selling Stockholders, assuming conversion. Notwithstanding the foregoing, no such reduction shall reduce the value of the Registrable Securities of the Holders be reduced included in such registration below thirty twenty five percent (3025%) of the total amount value of securities to be included in such registration, unless such registration other than with respect to does not include shares of any Other Selling Stockholders (excluding shares registered for the Initial Public Offeringaccount of the Company), in which case such Holders’ requests can event any or all of the Registrable Securities of the Holders may be reduced in their entiretyexcluded. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Surrozen, Inc./De), Business Combination Agreement (Consonance-HFW Acquisition Corp.)
Underwriting. If the registration of statement under which the Company gives notice under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Registrable Securities. In such event, the right of any such Holder to include its Registrable Securities be included in a registration pursuant to this Section 2.2 2.3 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 Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.2the Agreement, if the underwriters advise the Company underwriter determines in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters number of shares that may (subject be included in the underwriting shall be allocated, first, to the limitations set forth below) exclude all Registrable Securities fromCompany; second, or limit to the Holders on a pro rata basis based on the total number of Registrable Securities held by the Holders; and third, to be included in, any shareholder of the registration and underwritingCompany (other than a Holder) on a pro rata basis. The No such reduction shall (i) reduce the securities being offered by the Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled for its own account to be included in the registration and underwriting shall be allocatedunderwriting, as follows: (i) first, to the Company for securities being sold for its own account, and or (ii) second, to reduce the amount of securities of the selling Holders requesting to include Registrable Securities included in such the registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty twenty-five percent (3025%) of the total amount of securities to included in such registration, unless such offering is the Initial Offering and such registration does not include shares of any other selling shareholders, in which event any or all of the Registrable Securities of the Holders may be excluded in accordance with the immediately preceding sentence. In no event will shares of any other selling shareholder be included in such registration other which would reduce the number of shares which may be included by Holders without the written consent of Holders of not less than with respect sixty-six and two-thirds percent (66 2/3%) of the Registrable Securities proposed to be sold in the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyoffering. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration registration. For any Holder which is a partnership or corporation, the partners, retired partners and if shareholders of such Holder, or the number estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing person shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares of Registrable Securities to be carrying registration rights owned by all entities and individuals included in such registration was previously reduced “Holder,” as a result of marketing factors pursuant to defined in this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovesentence.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Xenon Pharmaceuticals Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, howeverassuming conversion and (iii) third, that in no event shall to the shares stockholders requesting to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included include Other Shares in such registration other than with respect to statement based on the Initial Public Offeringpro rata percentage of Other Shares held by such Other Selling Stockholders, in which case such Holders’ requests can be reduced in their entiretyassuming conversion. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Northumberland Resources, Inc.), Investors’ Rights Agreement (Northumberland Resources, Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.2 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). 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 by the Company. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise the Company Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to and Other Shares that may be so included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, allocated as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; provided(ii) second, howeverto the Other Selling Stockholders; and (iii) third, that in no event shall to the shares to be sold by such Holders be reduced below thirty percent (30%) Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyCompany. 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 also be excluded therefrom by written notice from the Company Company, the underwriter or the underwriterInitiating Holders. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2.1(e), then the Company shall then offer to all persons Holders and Other Selling Stockholders who have retained the right rights to include securities in the registration the right to include additional securities Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons such Holders and other Selling Stockholders requesting additional inclusion, in the manner as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Unity Biotechnology, Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.5(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 2.5 shall be conditioned upon such Holder’s '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 CompanyCompany and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.22.5, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the in such registration and underwriting(or exclude them entirely). The Company shall so advise all Holders and other holders of distributing their securities requesting registrationthrough such underwriting, and the number of shares of securities Registrable Securities that are entitled to may be included in the registration and underwriting (after inclusion of all shares to be included by the Company) shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the allocated among all Holders requesting to include inclusion of Registrable Securities in such registration statement based on in proportion, as nearly as practicable, to the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basisat the time of filing the registration statement; provided, however, that the right of the underwriters to exclude Registrable Securities from the registration and underwriting as described above shall be restricted such that (i) the number of Registrable Securities included in no event shall the shares to be sold by any such Holders registration may not be reduced below thirty twenty-five percent (3025%) of the total amount of securities to be shares included in the registration, except for a registration relating to the Company's initial public offering from which all Registrable Securities may be excluded; and (ii) all shares that are not Registrable Securities and all shares that are held by persons who are employees or directors of the Company (or any subsidiary of the Company) shall first be excluded from such registration other than and underwriting before any Registrable Securities are so excluded. To facilitate the allocation of shares in accordance with respect the above provisions, the Company may round the number of shares allocated to any Holder or holder to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretynearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or holder disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from , and shall not be transferred in a public distribution prior to one hundred eighty (180) days after the effective date of the registration and if statement relating thereto, or such other shorter period of time as the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveunderwriters may require.
Appears in 2 contracts
Sources: Investor Rights Agreement (Wink Communications Inc), Investor Rights Agreement (Wink Communications Inc)
Underwriting. If In the event of a registration of which the Company gives notice is for a registered public offering involving an underwritingpursuant to Section 5.1, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, 5.1(a)(i) that the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 5.1 shall be conditioned upon such Holder’s 's participation in such the underwriting arrangements required by this Section 5.1, 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 Companyunderwriting) enter into an underwriting agreement in customary form with the representative managing underwriter selected for such underwriting by a majority in interest of the underwriter or underwriters selected by Initiating Holders, but subject to the Company's reasonable approval. Notwithstanding any other provision of this Section 2.25.1, if the underwriters advise managing underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to exclude some or all of the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwritingSecurities. The Company shall so advise all holders Holders of securities requesting registrationRegistrable Securities, and the number of shares of securities Registrable Securities that may be included, if any are entitled to be included included, in the registration and underwriting shall be allocatedallocated among all Holders in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that at the time of filing the registration statement. Neither the Company nor any other holders of Registration Rights may participate in no event shall the shares proposed offering if any Holders have been cut back pursuant to be sold this Section 5.1(b). No Registrable Securities excluded from the underwriting by such Holders be reduced below thirty percent (30%) reason of the total amount of securities to underwriter's marketing limitation shall be included in such registration other than registration. To facilitate the allocation of shares in accordance with respect the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretynearest 100 shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder of Registrable Securities disapproves of the terms of any such the underwriting, such person shall also be excluded may elect to withdraw therefrom by written notice from to the Company or Company, the underwritermanaging underwriter and the Initiating Holders. The Registrable Securities or and/or other securities so excluded withdrawn shall also be withdrawn from registration, and such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities continue to be included in such registration was previously reduced as a result subject to the terms of marketing factors pursuant to this Agreement including this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above5.1 and Section 6 hereof.
Appears in 2 contracts
Sources: Investor Rights Agreement (Welch Allyn Inc), Investor Rights Agreement (Mobinetix Systems Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)2.2. In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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, the Other Selling Stockholders and other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that they have determined in good faith that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders who are Senior Investors requesting to include their Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion and (iii) third, to the Other Selling Stockholders and Holders who are Junior Investors requesting to include Other Shares or their Registrable Securities in such registration statement based on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold pro rata percentage of Other Shares and Registrable Securities held by such Other Selling Stockholders and Holders be reduced who are Junior Investors, assuming conversion. Notwithstanding the foregoing, no such reduction shall reduce the value of the Registrable Securities of the Holders included in such registration below thirty twenty percent (3020%) of the total amount value of securities to be included in such registration other than with respect to registration, unless such offering is the (i) Company’s Qualified Initial Public OfferingOffering and (ii) such registration does not include shares of any other selling stockholders (excluding shares registered for the account of the Company), in which case such Holders’ requests can event any or all of the Registrable Securities of the Holders may be reduced in their entiretyexcluded. 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 also may withdraw or be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Q2 Holdings, Inc.), Investors’ Rights Agreement (Q2 Holdings, Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 representative managing underwriter selected for such underwriting by the Company and reasonably acceptable to the Holders holding a majority of the underwriter or underwriters selected Registrable Securities proposed to be distributed by the CompanyHolders through such underwriting. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities frommanaging underwriter may, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and without requiring any limitation in the number of shares of securities that are entitled to be included registered on behalf of the Company (A) in the case of the Company’s initial registered public offering (if such offering is not made pursuant to Section 2.1), exclude from such registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company some or the underwriter. The all Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from (B) in the registration and if case of a registered public offering subsequent to the Company’s initial public offering, limit the number of shares of Registrable Securities to be included in such registration was previously reduced as a result and underwriting to not less than twenty-five percent (25%) of marketing factors pursuant to this Section 2.2(bthe securities included in such registration (based on aggregate market values), the . The Company shall then offer to so advise all persons who have retained Holders distributing their securities through such underwriting of such limitation and the right to include number of shares of securities that may be included in the registration and underwriting shall be allocated (i) first, to the right Company, (ii) second, among all Holders, other than the Founders and the Section 2.6(a) Parties, in proportion, as nearly as practicable, to include additional securities in the respective amounts of Registrable Securities requested to be included by such Holders at the time of filing the registration statement, (iii) third, to the Founders and the Section 2.6(a) Parties in an aggregate amount equal proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement, and (iv) fourth, among Other Stockholders in proportion to the number of shares so withdrawn, with such shares proposed to be included in such registration by such Other Stockholders. No shares proposed to be included in **** Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. such registration by any of the Other Stockholders shall be included in such registration unless all shares requested to be included by the Holders are included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company may round the number of shares allocated among to any Holder to the persons requesting additional inclusion, in the manner set forth abovenearest 100 shares.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Yodlee Inc)
Underwriting. If the a registration of statement under which the Company gives notice under this Clause is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Investor. In such event, the right of any Holder the Investor to include its Registrable Securities be included in a registration pursuant to this Section 2.2 Clause shall be conditioned conditional upon such Holderthe Investor’s participation in such underwriting and the inclusion of such Holderthe Investor’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting The Investor shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter(s) may exclude up to seventy percent (subject to 70%) of the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, from the registration and the underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) first, first to the Company for securities being sold for its own accountCompany, and (ii) second, to the Holders requesting to include Investor and the Existing Holders, pro rata among them based on the respective total number of their respective Registrable Securities which they had requested to be included in such registration statement based on and underwriting; and third, to holders of other Securities of the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; Company, provided, however, that the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that (i) the number of Registrable Securities included in no event shall the shares to be sold by any such Holders be registration is not reduced below thirty percent (30%) of the total amount aggregate number of securities to Registrable Securities for which inclusion has been requested; and (ii) all shares that are not Registrable Securities and are held by any other person, including, without limitation, the Founder and any other person who is an employee, officer, consultant or director of the Company (or any Subsidiary of the Company) shall first be included in excluded from such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyand underwriting before any Registrable Securities are so excluded. If a person who has requested inclusion in such registration as provided above does not agree to the Investor disapproves of the terms of any such underwriting, such person shall also be excluded the Investor may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveregistration.
Appears in 2 contracts
Sources: Investor Rights Agreement (Tencent Holdings LTD), Investor Rights Agreement (58.com Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i5.2(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 5.2 shall be conditioned upon such Holder’s 's participation in such underwriting underwriting, and the inclusion of such Holder’s Registrable Securities in the underwriting shall be limited to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.25.2, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to exclude some or all of the limitations set forth below) exclude all Registrable Securities fromSecurities, or limit the number securities of Registrable Securities to be included inother holders of registration rights other than persons exercising demand registration rights, the registration and underwritingfrom such registration. The Company shall so advise all Holders and other holders of distributing their securities requesting registrationthrough such underwriting, and the number of shares of Registrable Securities, if any are included, or securities of other holders of registration rights other than persons exercising demand registration rights, that are entitled to may be included in the registration and underwriting shall be allocated. To facilitate the allocation of shares in accordance with the above provisions, as follows: (i) first, the Company may round the number of shares allocated to any Holder or other holder to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretynearest 100 shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or other holder disapproves of the terms of any such underwriting, such person shall also be excluded he or she may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration , and if the number of shares of Registrable Securities shall continue to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal subject to the number terms of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion, in the manner set forth abovethis Agreement including Section 6 hereof.
Appears in 2 contracts
Sources: Investor Rights Agreement (Welch Allyn Inc), Investor Rights Agreement (Mobinetix Systems Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and the Other Selling Stockholders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting; provided that the number of Registrable Securities included in such registration and underwriting shall not be reduced below 30% of the securities included in such registration unless such offering is the Company’s Initial Public Offering in which case the Holders may be excluded entirely if the underwriters make the determination described above and no securities other than those of the Company are included in such registration. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providedHolders, howeverassuming conversion and (iii) third, that in no event shall to the shares Other Selling Stockholders requesting to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included include Other Shares in such registration other than with respect to statement based on the Initial Public Offeringpro rata percentage of Other Shares held by such Other Selling Stockholders, in which case such Holders’ requests can be reduced in their entiretyassuming conversion. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Zogenix, Inc.)
Underwriting. If the Holders of Registrable Securities requesting registration under this Section 2.2 intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to this Section 2.2 and the Company shall include such information in the written notice given pursuant to Section 2.2(a)(i), except, that in the case of a Shelf Registration Statement, such request may be made at any time during the effectiveness of such Shelf Registration Statement as to some or all of the Registrable Securities and the Company shall notify the Holders promptly following such a request and shall amend or supplement the Shelf Registration Statement as may be necessary in order to enable such underwritten distribution. In such event, event the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.2 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, provided that in the case of a Shelf Registration Statement, a request for an underwritten distribution shall not affect the rights of any Holders to include their Registrable Securities in such Shelf Registration Statement but the rights of the Holders to participate in such underwritten distribution shall be conditioned upon their participation in such underwriting as provided herein. All The Company shall (together with all Holders 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 by a majority in interest of the requesting Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company Company, the underwriter or the underwriterInitiating Holders. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration, unless the registration is pursuant to a Shelf Registration Statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from , unless the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors is pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovea Shelf Registration Statement.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Sonos Inc)
Underwriting. If In the event that a registration of which the Company gives notice pursuant to Section 2.5 is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.5(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 2.5 shall be conditioned upon such Holder’s participation in such the underwriting arrangements required by this Section 2.5, and the inclusion of such Holder’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 Companyunderwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company, but subject to reasonable approval of a majority in interest of the Initiating Holders (based on Registrable Securities requested to be included in such registration). Notwithstanding any other provision of this Section 2.22.5, if the underwriters advise managing underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, Registrable Securities and the number of shares of securities Registrable Securities that are entitled to may be included in the registration and underwriting shall be allocated, among all Holders in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basisat the time of filing the registration statement; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such underwriting and registration was previously shall not be reduced as a result unless all other securities of the Company are first entirely excluded from the underwriting and registration. No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing factors pursuant to this Section 2.2(b)limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company shall then offer to all persons who have retained or the right 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 shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. The Registrable Securities and/or other securities so withdrawnwithdrawn shall also be withdrawn from registration, with and such shares Registrable Securities shall not be transferred in a public distribution prior to be allocated among ninety (90) days after the persons requesting additional inclusioneffective date of such registration, in or such other shorter period of time as the manner set forth aboveunderwriters may require.
Appears in 2 contracts
Sources: Stockholders Agreement (Sagent Pharmaceuticals, Inc.), Members Agreement (Sagent Holding Co.)
Underwriting. (i) If the registration of statement with respect to which the Company gives notice under this Section 2.2 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Registrable Securities. In such event, the right of any such Holder to include its Registrable Securities be included in a registration pursuant to this Section 2.2 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 Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company underwriter determines in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own accountCompany; second, among (x) the Holders and (iiy) second, to the Holders requesting to include Registrable Securities in such registration statement Wexford Capital LP (“Wexford”) on a pro rata basis based on the pro rata percentage total number of Registrable Securities proposed to be sold in the offering held by such the Holders on a Fully Diluted basis; provided, however, that in no event shall and the total number of shares of Common Stock proposed to be sold by such Holders be reduced below thirty percent (30%) Wexford; and third, among any other shareholders of the Company having the right to register securities in connection with such registration (“Other Holders”) on a pro rata basis based on the total amount number of securities shares proposed to be included sold in such registration other than with respect to the Initial Public Offering, in which case such offering held by the Other Holders’ requests can be reduced in their entirety. .
(ii) If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if the number of shares of but shall remain “Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to Securities” under this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveAgreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Famous Daves of America Inc), Registration Rights Agreement (Famous Daves of America Inc)
Underwriting. If the registration Holders intend to distribute the Registrable Securities covered by their request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company they shall so advise the Holders Company as a part of their request made pursuant to subsection 2.2(i) and the Company shall include such information in the written notice given pursuant referred to Section 2.2(a)(iin paragraph 2.2(i)(a). The underwriter will be selected by a majority in interest of the Initiating Holders, with the approval of the Company, which shall not be unreasonably withheld. In such event, the right of any Holder the Holders to include its Registrable Securities securities in a such registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s Holders’ participation in such underwriting and the inclusion of such Holder’s Registrable Securities Holders’ securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Holders), to the extent provided herein. All The Holders proposing to distribute their securities through such underwriting shall (together with the Company) ), enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by for such underwriting. If the Company. Notwithstanding any other provision of this Section 2.2, if underwriter advises the underwriters advise the Company in writing Holders that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and then the number of shares of securities Registrable Securities that are entitled to may be included in the registration and underwriting shall be allocatedallocated first among all Investors requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Investors, as follows: (i) first, to the Company for securities being sold for its own accountassuming conversion, and (ii) second, to the second among all non-Investor Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; providednon-Investor Holders, howeverassuming conversion. In any event, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to all Registrable Securities must be included in such any registration initiated pursuant to this Section 2.2, prior to any other than with respect to securities of the Initial Public OfferingCompany, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom whether held by written notice from the Company or by any shareholder that is not deemed as a Holder for the underwriterpurpose of this Section 2.2. The Registrable Securities or other Company shall not register securities for sale for its own account in any registration requested pursuant to this Section 2.2 unless permitted to do so excluded shall also be withdrawn from such registrationby the written consent of the Initiating Holders. Any Registrable Securities or other securities excluded or withdrawn from such underwriting Notwithstanding the provisions of Section 3.3 below, no holder of the Company’s shares shall be withdrawn from such registration. If shares are so withdrawn from granted registration rights similar to the registration and if rights granted in this Section 2.2 so as to reduce the number of shares includable by the holders of the Registrable Securities to be included in such registration was previously reduced as without the consent of at least a result majority of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveRegistrable Securities.
Appears in 2 contracts
Sources: Investors Rights Agreement (SteadyMed Ltd.), Investors Rights Agreement (SteadyMed Ltd.)
Underwriting. If the registration of which the Company gives ------------ notice is for a registered public offering involving an underwriting, the Company shall so advise each of the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2(b)(i)(A). In such event, the right of any Holder each of the Holders to include its Registrable Securities in a registration pursuant to this Section 2.2 2(b) shall be conditioned upon such Holder’s Holders' participation in such underwriting and the inclusion of such Holder’s Holders' Registrable Securities in the underwriting to the extent provided herein. All The Holders proposing whose shares are to distribute their securities through be included in such underwriting registration shall (together with the CompanyCompany and the Other Stockholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 2.22(b), if the underwriters advise the Company in writing representative determines that marketing factors require a limitation on the number of shares to be underwritten, the underwriters representative may (subject to the limitations allocation priority set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, allocated in the following manner: the securities of the Company held by the Initiating Holders and by each Other Stockholder ("Demanding Holders") shall be excluded from such registration and underwriting as follows: (i) first, securities held by each Other Stockholder (other than Flemings Shares and Encore Shares) to the Company minimum extent required (which may be up to 100% of such securities) by such limitation, such exclusion to be effected on a pro rata basis (based on the number of shares requested for securities being sold for its own accountinclusion in such registration by such Other Stockholder); and, and (ii) second, to the extent that the Company is advised that additional shares must also be excluded from such registration, securities held by the holders of Flemings Shares, Encore Shares and the Initiating Holders requesting to include Registrable Securities in shall be excluded from such registration statement to the minimum extent so required (which may be up to 100% of such securities) by such limitation, such exclusion to be effected on a pro rata basis (based on the pro rata percentage number of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. If a person who has requested for inclusion in such registration as by the Initiating Holders and the holders of the Flemings Shares and the holders of the Encore Shares), provided that if -------- such registration is a request by the holders of Flemings Shares pursuant to Section 2(a)(i) of the Flemings Registration Rights Agreement, then, unless the Initiating Holders have elected to join in such request for registration by notice to the Company and the holders of the Flemings Shares within ten (10) days of the notice referred to in Section 2(b)(i)(A) hereof, such exclusion referred to in "second" above does shall apply only to the Initiating Holders and the holders of the Encore Shares and not agree to the holders of Flemings Shares. If any of the Demanding Holders disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 1 contract
Underwriting. If the registration of for which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.1(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to under this Section 2.2 2.1(b) 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 as provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company, the Other Selling Stockholders and other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company, it being understood, however, that no Holder will be required to make any representation or warranties in that Agreement other than representations and warranties regarding that Holder and Holder’s intended method of distribution. Notwithstanding any other provision of this Section 2.22.1(b), if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude exclude, in the case of an IPO, all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; provided, however, that that, if any Holder does not request inclusion of the maximum number of shares of Registrable Securities allocated to it pursuant to its pro rata allocation, in which case the remaining portion of its allocation shall be reallocated among those requesting Holders whose allocations did not satisfy their initial requests, pro rata, on the basis of the number of shares of Registrable Securities held by such Holders assuming conversion, and this procedure shall be repeated until all of the shares of Registrable Securities which may be included in the registration on behalf of the Holders have been so allocated. In no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) number of the total amount of securities to be included Registrable Securities underwritten in such registration be limited unless and until all shares held by persons other than with respect to Holders (excluding shares registered for the account of the Company) are completely excluded from such offering; and provided that, after the Initial Public Offering, in which case such at least 20% of the shares sold pursuant this Section 2.1(b) shall be allocated to Holders’ requests can be reduced in their entirety. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this under Section 2.2(b2.1(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Cancer Prevention Pharmaceuticals, Inc.)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(iSections 1.3(a)(i) or 1.3(a)(ii). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 1.3 shall be conditioned upon such Holder’s '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 CompanyCompany and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company, but subject to the reasonable approval of Holders holding more than a majority of the Registrable Securities to be included in such registration. Notwithstanding any other provision of this Section 2.21.3, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwritingin such registration. The Company shall so advise all Holders and other holders of distributing their securities requesting registrationthrough such underwriting, and the number of shares of securities that are entitled to may be included in the registration and underwriting (other than in behalf of the Company) shall be allocatedallocated among all Holders and such other holders (provided that such other holders have contractual rights to participate in such registration which are not subordinate to the Holders) in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include respective amounts of Registrable Securities or other securities requested to be included in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisand such other holders; provided, however, that in no event shall the shares to be sold by such amount of Registrable Securities of the Holders included in the offering be reduced below thirty twenty percent (3020%) of the total amount of securities to be included in such registration other than with respect to offering, unless such offering is the Initial Public Offering, initial public offering of the Company's securities in which case the Holders may be excluded entirely if the underwriters make the determination described above or the Holders holding a majority of the Registrable Securities consent in writing to such Holders’ requests can a reduction; and provided, further, that the Registrable Securities held by the Founders shall be reduced before any reduction in their entiretythe Registrable Securities to be offered by other Holders. To facilitate the allocation of shares in accordance with the above provisions, the Company may round the number of shares allocated to any Holder or holder to the nearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or holder disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other Except as set forth in Section 1.11, any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from , and shall not be transferred in a public distribution prior to ninety (90) days after the effective date of the registration and if statement relating thereto, or such other shorter period of time as the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveunderwriters may require.
Appears in 1 contract
Sources: Series C Preferred Stock Purchase Agreement (Tenera Inc)
Underwriting. If the registration of which the Company Castle Brands gives notice is for a registered public offering involving an underwriting, the Company Castle Brands shall so advise the Holders Investor as a part of the written notice given pursuant to this Section 2.2(a)(i)6.1. In such event, the right of any Holder Investor to include its Registrable Securities in a registration pursuant to this Section 2.2 6.1 shall be conditioned upon such HolderInvestor’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders holders proposing to distribute their securities through such underwriting shall (together with Castle Brands and the CompanyInvestors distributing their shares of Registrable Securities through such underwriting) enter into an underwriting agreement in customary form with the representative managing underwriter selected for such underwriting by Castle Brands and may, at their option, require that any or all of the underwriter representations and warranties by, and the other agreements on the part of, Castle Brands to and for the benefit of such underwriters also be made to and for their benefit and that any or all of the conditions precedent to the obligations of such underwriters selected under such underwriting agreement also be conditions precedent to their obligations. No Investor other than an Investor who, together with its affiliates (within the meaning of Rule 12b-2 under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), owns at least a majority of the outstanding capital stock of Castle Brands (on an as-converted basis, if applicable) shall be required to make any representations or warranties to or agreements with Castle Brands or the underwriters other than representations, warranties or agreements regarding such Investor and its ownership of the shares of capital stock being registered on its behalf and such Investor’s intended method of distribution and any other representation required by the Companylaw. Notwithstanding any other provision of this Section 2.26.1.4, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares of Registrable Securities to be underwritten, the underwriters managing underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwritingunderwriting (up to the exclusion of all Registrable Securities), on a pro rata basis based on the total number of shares of capital stock of Castle Brands (including Registrable Securities) (on an as-converted basis) requested to be included in such registration. The Company shall so advise all holders To facilitate the allocation of securities requesting registrationcapital stock in accordance with the above provisions, and Castle Brands or the underwriters may round the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, Registrable Securities allocated to the Company for securities being sold for its own account, and (ii) second, Investor to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage nearest 10 shares of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretySecurities. If a person who has requested inclusion in such registration as provided above does not agree to the Investor disapproves of the terms of any such underwriting, such person shall also be excluded it may elect to withdraw therefrom by written notice from to Castle Brands and the Company or the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 1 contract
Underwriting. If the a registration of statement under which the Company gives notice under this Clause 2.2 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Investors. In such event, the right of any Holder Investor to include its Registrable Securities be included in a registration pursuant to this Section Clause 2.2 shall be conditioned conditional upon such HolderInvestor’s participation in such underwriting and the inclusion of such HolderInvestor’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through Each Investor participating in such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then (1) if the underwriters registration statement relates to an offering of Company Securities by the Company, the managing underwriter(s) may exclude up to seventy percent (subject to 70%) of the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, from the registration and the underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) first, first to the Company for securities being sold for its own accountCompany, and (ii) second, to the Holders requesting to include Investors and the Existing Holders, pro rata among them based on the total number of their respective Registrable Securities which they had requested to be included in such registration statement based on the pro rata percentage and underwriting; and third, to holders of Registrable Securities held by such Holders on a Fully Diluted basis; other Company Securities, provided, however, that the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that (i) the number of Registrable Securities included in no event shall the shares to be sold by any such Holders be registration is not reduced below thirty percent (30%) of the aggregate number of Registrable Securities for which inclusion has been requested; and (ii) all shares that are not Registrable Securities and are held by any other Person, including, without limitation, any person who is an employee, officer, consultant or director of the Company (or any Subsidiary of the Company) shall first be excluded from such registration and underwriting before any Registrable Securities are so excluded, and (2) if the registration statement relates to an offering of Company Securities by any Existing Holder, the managing underwriter(s) may exclude the Registrable Securities from the registration and the underwriting, and the number of shares that may be included in the registration and the underwriting shall be allocated, first to the Existing Holders, second, to the Investors, pro rata among them based on the total amount number of securities their respective Registrable Securities which they had requested to be included in such registration and underwriting; third, the Company; and fourth, to holders of other Securities of the Company, provided, however, that the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that all shares that are not Registrable Securities and are held by any other Person (other than with respect to an Existing Holder), including, without limitation, any person who is an employee, officer, consultant or director of the Initial Public Offering, in which case Company (or any Subsidiary of the Company) shall first be excluded from such Holders’ requests can be reduced in their entiretyregistration and underwriting before any Registrable Securities are so excluded. If a person who has requested inclusion in such registration as provided above does not agree to any Investor disapproves of the terms of any such underwriting, such person shall also be excluded Investor may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration registration. For any Investor that is a partnership, the Investor and if the number partners and retired partners of such Investor, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons, and for any Investor that is a corporation, the Investor and all corporations that are Associates of such Investor, shall be deemed to be a single “Investor” and any pro rata reduction with respect to such “Investor” shall be based upon the aggregate amount of shares of Registrable Securities to be carrying registration rights owned by all entities and individuals included in such registration was previously reduced “Investor”, as a result of marketing factors pursuant to defined in this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovesentence.
Appears in 1 contract
Underwriting. (i) If the registration of which the Company gives Investors give notice is for a registered public offering involving an underwriting, the Company Investors shall so advise the Holders Company as a part of their request made pursuant to Section 2.1 (a) above. The Company shall include such information in the written notice given pursuant of the Company referred to in Section 2.2(a)(i)2.1(a)(i) above, including the name of the underwriter or representative thereof selected for such underwriting. In such event, the right of any Holder Investor to include its Registrable Securities in a registration pursuant to this Section 2.2 2.1 shall be conditioned upon such Holder’s participation Investor participating in such underwriting and the inclusion of such Holder’s Investor's Registrable Securities in the such underwriting to the extent provided herein. All Holders Any underwriter requested by the Investors shall be subject to the Company's approval.
(ii) The Company shall (together with all Investors proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Companyunderwriting) enter into an underwriting agreement in customary form with the Underwriter or representative of the underwriter or underwriters thereof selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.22.1, if the underwriters advise underwriter or representative thereof advises the Company Investors in writing that that, in its opinion, marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities Registrable Securities that are entitled to be included in the registration and underwriting shall be allocated, as followsallocated in the following manner: (i) first, to the securities of the Company for securities being sold for its own accountheld by officers or directors (other than Registrable Securities) of the Company and other stockholders, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares securities to be sold by the Company for its own account shall be excluded from such Holders be reduced below thirty percent (30%) registration to the extent so required by such limitation, and if a limitation of the total amount number of securities shares is still required, the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Investors in proportion, as nearly as practicable, to the respective amounts of Registrable Securities which they had requested to be included in such registration at the time of filing, the registration statement. No Registrable Securities or any other than with respect to securities excluded from the Initial Public Offering, underwriting by reason of the underwriter's marketing limitation shall be included in which case such Holders’ requests can be reduced in their entiretyregistration. If a person the Company or any holder of Registrable Securities, officer, director or other stockholder who has requested inclusion in such registration as provided above does not agree to disapproves of the terms of any such underwriting, such person shall also be excluded may elect to withdraw therefrom by written notice from to the Company or Company, the underwriterunderwriter and the other Investors. The Registrable Securities or other securities so excluded withdrawn shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 1 contract
Underwriting. If the registration of a Registration Statement under which the Company gives notice under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Eligible Holders. In such event, the right of any Holder Eligible Holders to include its Registrable Securities in a registration Registration pursuant to this Section 2.2 2.3 shall be conditioned upon such the Eligible Holder’s 's participation in such underwriting and the inclusion of such Eligible Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through Each Selling Shareholder shall, in such underwriting shall (together with the Company) event, enter into an underwriting agreement in customary form in connection with registrable secondary offerings with the representative of the managing underwriter or underwriters underwriter(s) selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise underwriter(s) advise(s) the Company and the Selling Shareholders in writing that marketing factors require a limitation on in its or their opinion the number of shares securities requested to be underwrittenRegistered exceeds the Maximum Number, then the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, the Selling Shareholders and include such Maximum Number in the Registration. The number of shares of securities that are entitled to may be included in the registration Registration and the underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own accountCompany, and (ii) second, to all selling shareholders (including the Holders requesting to include Registrable Securities in such registration statement Selling Shareholders), based on the pro rata percentage relative proportion of Registrable Securities held by shares of all such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyselling shareholders. If a person any Selling Shareholder who has requested inclusion elected to participate in such registration as provided above does not agree to the underwritten offering disapproves of the terms of any such underwriting, such person shall also be excluded Selling Shareholder may elect to withdraw therefrom by promptly providing written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from , at any time prior to the sale thereof (or, if applicable, the entry into a binding agreement for such registrationsale). Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveRegistration.
Appears in 1 contract
Sources: Registration Rights Agreement (Gamco Investors, Inc. Et Al)
Underwriting. If the registration of which the Company gives notice ------------ is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i2.6(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 2.6 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 hereinin this Section. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the Other Shareholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or representative of the underwriters selected for such underwriting by the Company. If the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing determines that marketing factors require a limitation on the number of shares to be underwritten, and (i) if such registration is the underwriters first registered offering of the Company's securities to the public, then the underwriter may (subject to the limitations allocation priority set forth below) exclude from such registration and underwriting some or all of the Registrable Securities fromwhich would otherwise be underwritten pursuant to the notice described in this Section, or and (ii) if such registration is other than the first registered offering of the sale of the Company's securities to the public, then the underwriter may limit the number of Registrable Securities to be included in, in the registration and underwritingunderwriting to not less than fifty percent (50%) of the securities included therein (based on aggregate market values), subject to the allocation priority set forth below; provided, that the underwriter may further limit the number of Registrable Securities as provided by Section 2.6(c). The Company shall so advise all holders of securities requesting registrationregistration promptly after such determination by the underwriter, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocatedallocated in the following manner: The securities of the Company (other than Registrable Securities) held by officers and directors of the Company shall be excluded from such registration and underwriting to the extent required by such limitation, and if a limitation of the number of shares is still required, the number of shares that may be included in the registration and underwriting shall be allocated among all such Holders and Other Shareholders in proportion, as follows: (i) firstnearly as practicable, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of and other securities which they had requested to be included in such registration other than with respect at the time of filing the registration statement, except that Registrable Securities shall be the last to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretylimited. If a person who has requested inclusion in such registration as provided above does not agree to any Holder of Registrable Securities or any officer, director or Other Shareholder disapproves of the terms of any such underwriting, such person shall also be excluded he may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from ; provided, that, if by the registration and if the withdrawal of such securities a greater number of shares of Registrable Securities to held by other participating Holders may be included in such registration was previously reduced as a result (up to the maximum of marketing factors pursuant to this Section 2.2(bany limitation imposed by the underwriter), then the Company shall then offer allocate such greater number of Registrable Securities to all persons who have retained the right to include securities such Holders in the registration the right to include additional securities in the registration in an aggregate amount equal proportion, as nearly as practicable, to the number respective amount of shares so withdrawn, with Registrable Securities held by such shares to be allocated among the persons requesting additional inclusion, in the manner set forth aboveparticipating Holders.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders Holder as a part of the written notice given pursuant to Section 2.2(a)(i)1(a)(i) above. In such event, event the right of any the Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 section shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s Registrable Securities Shares in the underwriting to the extent provided herein. All Holders The Holder proposing to distribute their securities the Shares through such underwriting shall (together with the CompanyCompany and, if applicable, any other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.2section, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters underwriter may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number or exclude all of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled Shares to be included in the registration and underwriting. The number of securities includable by the Holder may, in the discretion of the underwriters, be rounded to the nearest one hundred shares. No securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities included in such registration statement based on registration. If some but not all of the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares Shares are to be sold by such Holders be reduced below thirty percent (30%) of excluded from a registration, the total amount of securities Shares to be included in the registration shall be allocated on a pro rata basis based on the total number of shares of all securities being included in such registration other than with respect to registration; provided that no Registrable Securities, as that term is defined in that Sixth Amended and Restated Investor Rights Agreement made as of June 21, 2001 (the Initial Public Offering"▇▇▇") by and among the Company, the New Series C Investors (as defined in which case the ▇▇▇), the Prior Series C Investors (as defined in the ▇▇▇), the Founders (as defined in the ▇▇▇), the Baby-C Holders (as defined in the ▇▇▇) and the Series A Investors and Series B Investors (as defined in the ▇▇▇), shall be excluded from any Company Registration underwriting until all shares of Shares have been excluded from such Holders’ requests can be reduced in their entiretyunderwriting. If a person who has requested inclusion in such registration as provided above does not agree to the Holder disapproves of the terms of any such underwriting, such person shall also be excluded therefrom the Holder may elect to withdraw there from by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if underwriter has not limited the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 underwritten for the persons requesting additional inclusionCompany's account and the account of the Holder, in the manner set forth aboveCompany may then include securities for the account of employees, officers, directors and consultants.
Appears in 1 contract
Sources: Warrant Agreement (Healthetech Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 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 CompanyCompany and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters Company may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, in the registration and underwriting. The Company shall may limit, to the extent so advise all holders advised by the underwriters, the amount of securities requesting registration, and the number of shares of securities that are entitled Registrable Securities to be included in such registration, provided that the registration and underwriting shall be allocated, as follows: (i) first, to aggregate of the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other may not be so reduced to less than with respect to twenty-five percent (25%) of the Initial Public Offering, total value of all securities included in which case such Holders’ requests can registration. The exclusion of Registrable Securities under the Investor Rights Agreement and this Agreement shall only be reduced in their entiretymade on a pro rata basis. 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 also be excluded therefrom by written notice from the Company or the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above.
Appears in 1 contract
Sources: Registration Rights Agreement (Ambow Education Holding Ltd.)
Underwriting. If the registration of Eligible Registration Statement under which the Company gives notice under this Section 6.2 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)OW Group. In such event, the right of any Holder the OW Group to include its Registrable Securities be included in a registration an Eligible Registration Statement pursuant to this Section 2.2 6.2 shall be conditioned upon such Holderthe OW Group’s participation in such underwriting by executing and delivering a custody agreement and power of attorney in form and substance reasonably satisfactory to the Company with respect to such Registrable Securities (the “Custody Agreement and Power of Attorney”), which Custody Agreement and Power of Attorney shall permit the OW Group to, prior to the effectiveness of such Eligible Registration Statement, withdraw any of the Registrable Securities at any time from such Eligible Registration Statement upon written notice to the Company and the inclusion custodian. The Custody Agreement and Power of such Holder’s Registrable Securities in Attorney will provide, among other things, that (i) the underwriting OW Group will, to the extent provided herein. All Holders proposing applicable, deliver to distribute their securities through such underwriting shall (together and deposit in custody with the Company) enter custodian and attorney-in-fact named therein one or more certificates representing such Registrable Securities, accompanied by duly executed stock powers in blank, and irrevocably appoint said custodian and attorney-in-fact with full power and authority to act under the Custody Agreement and Power of Attorney on the OW Group’s behalf with respect to the matters specified therein, including, but not limited to, the entry into an underwriting agreement (the “Underwriting Agreement”“) in customary form with the representative of the underwriter underwriter(s) and such other documents and agreements reasonably required in connection with such registration or underwriters selected by the Company. Notwithstanding any other provision of this Section 2.2, if the underwriters advise the Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, offering and (ii) second, to the Holders requesting to include Registrable Securities OW Group will perform its obligations under such Underwriting Agreement and any other agreement entered into in connection with such registration statement based on the pro rata percentage of Registrable Securities held by and/or offering. The OW Group also agrees to execute such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. If a person who has requested inclusion in such registration documents and agreements as provided above does not agree to the terms of any such underwriting, such person shall also be excluded therefrom by written notice from the Company or may reasonably request to effect the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number provisions of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth above6.2 and any transactions contemplated hereby.
Appears in 1 contract
Sources: Share Purchase Agreement (Weight Watchers International Inc)
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i5.1(a)(1). In such event, the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 5.1 shall be conditioned upon such Holder’s 's participation in such underwriting underwriting, and the inclusion of such Holder’s Registrable Securities in the underwriting shall be limited to the extent provided herein. .
(c) All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.25.1, if the underwriters advise the Company in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters managing underwriter may (subject to exclude some or all of the limitations set forth below) exclude all Registrable Securities fromSecurities, or limit the number securities of Registrable Securities to be included inother holders of registration rights, the other than persons exercising demand registration and underwritingrights, from such registration. The Company shall so advise all holders of securities requesting registrationHolders, and other holders distributing their securities through such underwriting of any limits imposed on their participation in the underwriting as provided in this Section 5.1. The number of shares of Registrable Securities, or securities of other holders of registration rights other than persons exercising demand registration rights, that are entitled to may be included in the registration and underwriting in accordance with this Section 5.1 shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to allocated among all the Holders requesting to include Registrable Securities in and such other holders of securities not exercising demand registration statement rights pro rata based on the pro rata percentage number of Registrable Securities or securities held by the Holders and such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent other holders.
(30%d) If any Holder or other holder disapproves of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entirety. 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 also be excluded he or she may elect to withdraw therefrom by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration , and if the number of shares of Registrable Securities shall continue to be included in such registration was previously reduced as a result subject to the terms of marketing factors this Agreement, including Section 6 hereof. Furthermore,
(1) Following the date hereof, the Company shall not grant to any shareholder any rights superior to those granted to the Preferred Stockholders pursuant to this Section 2.2(b)5.1 without the prior consent of more than Fifty-One Percent (51%) of (A) the then-outstanding shares of Preferred Stock (on an as-converted basis) and Agent's Shares plus (B) if some or all of the shares of Preferred Stock have been converted into Common Stock, then the Company shall then offer Conversion Stock issued pursuant to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveconversion.
Appears in 1 contract
Sources: Series C Convertible Preferred Stock Purchase Agreement (Soligen Technologies Inc)
Underwriting. If the registration of statement under which the Company gives notice under this Section 2.3 is for a registered public offering involving an underwritingunderwritten offering, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Registrable Securities. In such event, the right of any such Holder to include its Registrable Securities be included in a registration pursuant to this Section 2.2 2.3 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 Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company or underwriter determines in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) Company; second, to the Holders requesting to include Registrable Securities in such registration statement on a pro rata basis based on the pro rata percentage total number of Registrable Securities held by such Holders the Holders; and third, to any stockholder of the Company (other than a Holder) on a Fully Diluted pro rata basis; provided, however, that in no event shall the shares to be sold by if such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to offering is the Initial Public Offering, in which case such Holders’ requests can all Registrable Securities may be reduced in their entiretyexcluded from the Initial Offering. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall also be excluded Holder may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration registration. For any Holder which is a partnership or corporation, the partners, retired partners and if stockholders of such Holder, or the number estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing person shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares of Registrable Securities to be carrying registration rights owned by all entities and individuals included in such registration was previously reduced “Holder,” as a result of marketing factors pursuant to defined in this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovesentence.
Appears in 1 contract
Sources: Investor Rights Agreement (Reliant Technologies Inc)
Underwriting. If the a registration of statement under which the Company gives notice under this Clause is for a registered public offering involving an underwritingunderwritten offering, then the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i)Investor. In such event, the right of any Holder the Investor to include its Registrable Securities be included in a registration pursuant to this Section 2.2 Clause shall be conditioned conditional upon such Holderthe Investor’s participation in such underwriting and the inclusion of such Holderthe Investor’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting The Investor shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected by the Companyfor such underwriting. Notwithstanding any other provision of this Section 2.2Agreement, if the underwriters advise the Company managing underwriter(s) determine(s) in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, then the underwriters managing underwriter(s) may exclude up to seventy percent (subject to 70%) of the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, from the registration and the underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration and the underwriting shall be allocated, as follows: (i) first, first to the Company for securities being sold for its own accountCompany, and (ii) second, to the Holders requesting Investor; and third, to include Registrable holders of other Securities in such registration statement based on of the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; Company, provided, however, that the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that (i) the number of Registrable Securities included in no event shall the shares to be sold by any such Holders be registration is not reduced below thirty percent (30%) of the total amount aggregate number of securities to Registrable Securities for which inclusion has been requested; and (ii) all shares that are not Registrable Securities and are held by any other person, including, without limitation, the Founders and any other person who is an employee, officer, consultant or director of the Company (or any Subsidiary of the Company) shall first be included in excluded from such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyand underwriting before any Registrable Securities are so excluded. If a person who has requested inclusion in such registration as provided above does not agree to the Investor disapproves of the terms of any such underwriting, such person shall also be excluded the Investor may elect to withdraw therefrom by written notice from to the Company or and the underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registrationunderwriter(s), delivered at least ten (10) days prior to the effective date of the registration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so excluded and withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth aboveregistration.
Appears in 1 contract
Sources: Investor Rights Agreement (China Jo-Jo Drugstores, Inc.)
Underwriting. If the registration Investor intends to distribute the Registrable Securities covered by its request by means of which the Company gives notice is for a registered public offering involving an underwriting, the Company it shall so advise the Holders Company as a part of the written notice given its request made pursuant to this Section 2.2(a)(i)2. In such event, the right of any Holder the Investor to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.2 2 shall be conditioned upon such Holderthe Investor’s participation in such underwriting and the inclusion of such Holderthe Investor’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting The Company shall (together with the CompanyInvestor) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Investor, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.2, if If the underwriters advise managing underwriter advises the Company Investor in writing that marketing factors require a limitation on that, in its opinion, the number of shares to be underwritten, requested by the underwriters may (subject to the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled Investor to be included in the registration and underwriting shall be allocatedsuch registration, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held well as any other shares requested by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities other shareholders to be included in such registration pursuant to any piggy-back registration rights or proposed to be included by the Company, is likely to affect materially and adversely the success of the offering, the timing, the method of distribution or the price that would be received for any shares of Common Stock offered in such offering, then, notwithstanding anything in this Section 2 or any other than agreements of the Company with respect any other shareholders to the Initial Public Offeringcontrary, the Company shall be required to include in such registration the Registrable Securities requested to be included in such registration for the account of the Investor, in which case such Holders’ requests can be reduced in their entiretypriority to any other shareholders and the Company. If a person who the Investor has requested inclusion of Registrable Securities in such registration as provided above and does not agree to the terms of any such underwriting, such person shall also the Investor’s Registrable Securities may be excluded therefrom by written notice from the Company or the underwritertherefrom. The Any Registrable Securities excluded or other securities so excluded withdrawn from such underwriting shall also be withdrawn from such registration. Any If Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration registration, and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b2(d), then the Company shall then offer to all persons other shareholders who have retained the right rights to include securities in the registration the right to include additional securities shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion, in the manner set forth above.
Appears in 1 contract
Underwriting. If the registration of which the Company gives ------------ notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.2(a)(i7.2(a)(i). In such event, event the right of any Holder to include its Registrable Securities in a registration pursuant to this Section 2.2 7.2 shall be conditioned upon such Holder’s 's participation in such underwriting underwriting, and the inclusion of such Holder’s Registrable Securities and Other Shares in the underwriting shall be limited to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the CompanyCompany and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.27.2, if the underwriters advise managing underwriter of such underwritten offering advises the Company in writing that marketing factors require a limitation on of the number of shares to be underwritten, the underwriters Company may (subject to exclude some or all of the limitations set forth below) exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the and Other Shares from such registration and underwriting. The Company shall so advise all holders Holders distributing their securities through such registration and underwriting of securities requesting registration, and the number of shares of securities that are entitled to may be included in the registration registration, if any, and the underwriting shall be allocatedallocated first to the Company, second to any holder of capital stock that is subject to any agreement that by its terms would give any other person priority over the Holders, and third to the Holders and such holders of capital stock that are subject to any agreement which by its terms grants rights not in priority over the Holders ("Other Holders") (with such shares being allocated among all Holders and Other Holders in proportion, as follows: nearly as practicable, to the respective amounts of Registrable Securities and Other Shares initially sought to be registered by such Holders and Other Holders in connection with such registration; provided, that among the Holders (ibut not the Other Holders), the Company shall register all Registrable Securities prior to registering any Other Shares; and provided, further, that for any registration statement filed on or before August 3, 2002 on Form S-1 (the "Secondary S-1"), the Company shall use reasonable best effort to include the Registered Shares in such offerng and the underwriting shall be allocated first to the Company, second to individuals designated by the Company, third to the Holders with respect to Registrable Shares (and not with respect to the Other Shares) firstand fourth to the Other Holders. If any Holder disapproves of the terms of the underwriting, such Holder may elect as its sole remedy to withdraw therefrom by written notice, given not less than thirty (30) days prior to the expected effective date of the registration statement filed in connection with such offering, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretymanaging underwriter. If a person who has requested inclusion in such registration as provided above any Holder does not agree to the terms of any such underwriting, such person Holder shall also be excluded therefrom by written notice from the Company or the underwritermanaging underwriter and upon their exclusion, any Registrable Securities shall become Other Shares and shall no longer be Registrable Securities. The No Registrable Securities or other securities so Other Shares excluded shall also be from the underwriting by reason of the managing underwriter's marketing limitation or otherwise withdrawn from the underwriting shall be included in such registration. Any Registrable Securities or other securities excluded or withdrawn from such an underwriting shall be withdrawn from such registration, and shall continue to be subject to the terms of this Agreement. If To facilitate the allocation of shares are so withdrawn from in accordance with the registration and if above provisions, the Company or the underwriters may round the number of shares of Registrable Securities allocated to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal any Holder to the number of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion, in the manner set forth abovenearest one hundred (100) shares.
Appears in 1 contract
Underwriting. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders Investors as a part of the written notice given pursuant to Section 2.2(a)(i)2 (a) above. In such event, the right of any Holder the Investors to include its Registrable Securities in a registration pursuant to this Section 2.2 2 (a) shall be conditioned upon such Holder’s Investors' participation in such underwriting and the inclusion of such Holder’s Registrable Securities Shares in the underwriting to the extent provided hereinherein on the same terms as the securities otherwise being sold through the underwriting. All Holders The Investors, if they are proposing to distribute their securities Registrable Shares through such underwriting underwriting, shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters underwriter(s) selected for such underwriting by the Company. Notwithstanding any other provision of this Section 2.22, if the underwriters advise number of Registerable Shares requested for inclusion exceeds 20% of the Company total number of shares to be included in writing the offering and, the managing underwriter determines that marketing factors require a limitation on of the number of shares Registrable Shares to be underwritten, the underwriters managing underwriter may (subject limit the Registrable Shares to be included in such registration, such limitation to be on a pro rata basis based on the relation that such Registrable Shares bear to the limitations set forth belowtotal number of securities (including, without limitation, Registrable Shares) exclude all Registrable Securities fromproposed to be registered pursuant to the registration statement covered by this Section 2 by the Investors and by other persons selling securities pursuant to registration rights granted them by the Company or otherwise; provided, or limit however, that no such reduction may reduce below 20% of the total number of shares being offered the number of Registrable Securities Shares participating in such offering without the consent of holders of a majority of the Registrable Shares to be included in, in such offering. No Registrable Shares excluded from the registration and underwritingunderwriting by reason of the underwriters' marketing limitation shall be included in such registration. The Company shall so advise all holders the Investors of securities requesting registration, and the number of shares of securities Registrable Shares that are entitled to may be included in the registration and underwriting shall be allocated, as follows: (i) first, to the Company for securities being sold for its own account, and (ii) second, to the Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; provided, however, that in no event shall the shares to be sold by such Holders be reduced below thirty percent (30%) of the total amount of securities to be included in such registration other than with respect to the Initial Public Offering, in which case such Holders’ requests can be reduced in their entiretyunderwriting. If a person who has requested inclusion in such registration as provided above does the Investors do not agree to approve of the terms of any such underwriting, such person shall also be excluded therefrom they may elect to withdraw therefrom, without loss to the Investors of any rights under this Section 2, by written notice from to the Company or and the managing underwriter. The Registrable Securities or other securities so excluded shall also be withdrawn from such registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from registration and shall not be transferred in a public distribution prior to 90 days after the effective date of the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.2(b), the Company shall then offer to all persons who have retained the right 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 the persons requesting additional inclusion, in the manner set forth abovestatement relating thereto.
Appears in 1 contract
Sources: Registration Rights Agreement (Hixon J M Partners LLC)