Common use of Underwritten Shelf Takedown Clause in Contracts

Underwritten Shelf Takedown. Subject to Section 2.4 and Section 3.4, at any time that a Shelf Registration Statement is effective, a Holder of at least 30% of the then-outstanding number of Registrable Securities, any of the Sponsor Members or the Sponsor (such Holder or the Sponsor in such capacity, a “Demanding Holder”) may request to sell all or part of its Registrable Securities in an Underwritten Offering that is registered pursuant to the Shelf Registration Statement (an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown for a Holder of at least 30% of the then-outstanding number of Registrable Securities if such offering shall include Registrable Securities proposed to be sold by such Demanding Holder, either individually or together with other Demanding Holders, yielding aggregate gross proceeds in excess of $50,000,000 (based on then-current market prices) (the “Minimum Amount”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the number of Registrable Securities to be offered and sold under the Shelf Takedown. The Company shall have the right to select the Underwriter for such offering (which shall consist of one or more reputable nationally recognized investment banks. Notwithstanding the foregoing, (i) the Sponsor and the Sponsor Members (taken together) and (ii) the other Demanding Holders (taken together) may each demand not more than two Underwritten Shelf Takedowns, in each case pursuant to this Section 2.1.4 in any twelve (12) month period, for an aggregate of not more than four Underwritten Shelf Takedowns pursuant to this Section 2.1.4 in any twelve (12) month period. The Company may effect any Underwritten Offering pursuant to any then effective Registration Statement that is then available for such offering.

Underwritten Shelf Takedown. Subject (a) If, in the case of an offering pursuant to Section 2.4 and Section 3.4, at any time that a Shelf Registration Statement is effectivefiled pursuant to Section 2.1 and the Seller so elects (or if the Seller has not delivered written notice to effect an underwritten offering pursuant to this Agreement within ninety (90) after the date hereof, then if Purchaser so elects), such offering shall, by written notice delivered to the Purchaser or the Seller (as applicable), be in the form of a Holder Block Trade (subject in any event to Section 4.2). In the event of a Block Trade pursuant to this Section 3.2 (subject in any event to Section 4.2), (1) the electing party shall (i) give at least 30% ten (10) Business Days’ prior notice in writing of such transaction to the other party (which notice may be given prior to the filing of the then-outstanding number of Registrable SecuritiesShelf Registration Statement, any of provided that the Sponsor Members or the Sponsor (such Holder or the Sponsor in such capacity, Purchaser shall have no obligation to effect a “Demanding Holder”) may request to sell all or part of its Registrable Securities in an Underwritten Offering that is registered pursuant to Block Trade until the Shelf Registration Statement (an “Underwritten Shelf Takedown”has been filed); provided that and (ii) identify the Company potential underwriter(s) in such notice with contact information for such underwriter(s) for such Block Trade, which underwriter(s) shall only be obligated an investment banking firm(s) of national standing and shall be subject to effect an Underwritten Shelf Takedown for a Holder of at least 30% of the then-outstanding Purchaser’s reasonable approval and (iii) identify the total number of Registrable Eligible Securities if such offering shall include Registrable Securities proposed to be sold by such Demanding Holder, either individually or together with other Demanding Holders, yielding aggregate gross proceeds in excess of $50,000,000 (based on then-current market prices) (the “Minimum Amount”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the number of Registrable Securities expected to be offered and sold under in the Block Trade and the applicable Selling Holders, and (2) each party shall use reasonable best efforts to cooperate with the other party in connection with the completion of such Block Trade. For the avoidance of doubt, the Shelf Takedown. The Company Registration Statement shall have not be deemed available for use by the right to select the Underwriter Holders for such offering (which shall consist purposes of one or more reputable nationally recognized investment banks. Notwithstanding the foregoing, (i) the Sponsor and the Sponsor Members (taken together) and (ii) the other Demanding Holders (taken together) may each demand not more than two Underwritten Shelf Takedowns, in each case pursuant to this Section 2.1.4 in 3.2(a) during any twelve Blackout Period. (12b) month periodIn the case of an underwritten offering, for the Purchaser and Selling Holders shall enter into and perform their respective obligations under an aggregate of not more than four Underwritten Shelf Takedowns pursuant to this Section 2.1.4 in any twelve (12) month period. The Company may effect any Underwritten Offering pursuant to any then effective Registration Statement that is then available underwriting agreement with such underwriters for such offering, with such agreement to contain such representations and warranties by the Purchaser and Selling Holders and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, taking into account the Purchaser’s prior underwritten offerings, which may include, without limitation, indemnities and contribution to the effect and to the extent provided in Article VI hereof and the provision of independent certified public accountants’ letters to the effect and to the extent provided in Section 4.1(f) hereof, and any other documents or certificates customary in similar offerings. The Holders of Eligible Securities on whose behalf such securities are to be distributed by such underwriters shall be parties to any such underwriting agreement and the representations and warranties by, and the other agreements on the part of, the Purchaser to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of such securities, but only to the extent such representations and warranties and other agreements are customarily made by issuers to selling stockholders in secondary underwritten public offerings.

Underwritten Shelf Takedown. Subject to Section 2.4 and Section 3.4(i) If, at any time that during which a Shelf Registration Statement is effectivein effect (or in connection with its initial effectiveness), the Company shall receive a Holder of at least 30request from (x) Eligible Stockholders holding in the aggregate more than 10% of the then-then outstanding number Shares (such Persons, which, for the avoidance of Registrable Securitiesdoubt, any may include ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or his estate, the “Shelf Takedown Requesting Stockholders”) or (y) a ▇▇▇▇▇▇▇▇ Demanding Stockholder to facilitate an Underwritten Public Offering and sale of all or a portion of the Sponsor Members Registrable Securities registered or the Sponsor registrable thereon (such Holder or the Sponsor in such capacityrequest, a an “Demanding Holder”) may request to sell all or part of its Registrable Securities in an Underwritten Shelf Takedown Request,” and any Underwritten Public Offering that is registered conducted pursuant to the Shelf Registration Statement (thereto, an “Underwritten Shelf Takedown”); provided that , then the Company shall only be obligated use all reasonable efforts to effect (1) file such amendments and supplements or reports under the Exchange Act, if applicable, so as to include in the Shelf Registration, and (2) facilitate, as expeditiously as possible, the sale of: a. all Registrable Securities for which the Shelf Takedown Requesting Stockholders or the ▇▇▇▇▇▇▇▇ Demanding Stockholder, as applicable, have requested registration and sale under this Section 2.02(b), b. in the case of an Underwritten Shelf Takedown for Request at the request of Shelf Takedown Requesting Stockholders or a Holder of at least 30% ▇▇▇▇▇▇▇▇ Demanding Stockholder that is not a ▇▇▇▇▇▇▇▇ Legacy Stockholder, subject to the restrictions set forth in Section 2.01(d) (to the extent applicable), all other Registrable Securities that any other Stockholders have requested the Company to register and sell pursuant to a Piggyback Registration in accordance with Section 2.03(a), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the then-outstanding Registrable Securities to be so registered; provided that no Person may participate in any registration statement pursuant to this Section 2.02(b) unless such Person agrees to sell their Registrable Securities to the underwriters selected as provided in Section 2.05(f) on the same terms and conditions as apply to the Shelf Takedown Requesting Stockholders or such ▇▇▇▇▇▇▇▇ Demanding Stockholder, as the case may be; provided, however, that no such Registering Stockholders shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto; and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration, and c. in the case of an Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders or a ▇▇▇▇▇▇▇▇ Demanding Stockholder that is not a ▇▇▇▇▇▇▇▇ Legacy Stockholder, any other securities proposed to be registered and sold by the Company or any securities proposed to be registered and sold for the account of any other Persons, with such priorities among the Company and such other Persons as the Company shall determine. (ii) The Company shall be liable for and pay all Registration Expenses in connection with any Underwritten Shelf Takedown, regardless of whether such Registration is effected. The Committee (in the case of an Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders) and the ▇▇▇▇▇▇▇▇ Demanding Stockholder (in the case of an Underwritten Shelf Takedown Request at the request of such ▇▇▇▇▇▇▇▇ Demanding Stockholder) shall have the right, after consultation with the Company, to select the underwriters, initial purchasers or placement agents, if any, the price and other terms upon which and the process by which any sale pursuant to an Underwritten Shelf Takedown is effected; provided, however, that the Committee or the ▇▇▇▇▇▇▇▇ Demanding Stockholder, as the case may be, shall not select any underwriter, initial purchaser or placement agent to which the Company shall reasonably object. (iii) If the managing underwriter advises the Shelf Takedown Requesting Stockholder or the ▇▇▇▇▇▇▇▇ Demanding Stockholder, as the case may be, that, in its view, the number of Registrable Securities if requested to be included in an Underwritten Shelf Takedown (including, in the case of an Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders or a ▇▇▇▇▇▇▇▇ Demanding Stockholder that is not a ▇▇▇▇▇▇▇▇ Legacy Stockholder, any Registrable Securities that any Registering Stockholder proposes to be included and any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of Registrable Securities that can be sold without having an adverse effect on such offering offering, including the price at which such Registrable Securities can be sold (the “Shelf Takedown Maximum Offering Size”), the Company shall include in such registration and/or such Underwritten Public Offering, in the priority listed below, up to the Shelf Takedown Maximum Offering Size: (A) in the case of an Underwritten Shelf Takedown Request at the request of a ▇▇▇▇▇▇▇▇ Legacy Stockholder, a number of Registrable Securities equal to the Shelf Takedown Maximum Offering Size; provided, however, that if the Shelf Takedown Maximum Offering Size is less than the number of Registrable Securities sought to be registered by the ▇▇▇▇▇▇▇▇ Legacy Stockholder, then such ▇▇▇▇▇▇▇▇ Legacy Stockholder may withdraw such request as provided in Section 2.02(d); (B) in the case of an Underwritten Shelf Takedown Request at the request of Shelf Takedown Requesting Stockholders or a ▇▇▇▇▇▇▇▇ Demanding Stockholder that is not a ▇▇▇▇▇▇▇▇ Legacy Stockholder: (1) first, all Registrable Securities proposed to be sold by such Demanding Holder, either individually or together with other Demanding Holders, yielding aggregate gross proceeds in excess of $50,000,000 (based on then-current market prices) the Registering Stockholders (the “Minimum Amount”). All requests Registrable Securities, allocated, if necessary for Underwritten the offering not to exceed the Shelf Takedowns shall be made by giving written notice to Takedown Maximum Offering Size, pro rata among the Company, which shall specify Registering Stockholders on the basis of the relative number of Registrable Securities so requested to be offered included in such offering by each Registering Stockholder); and (2) second, any securities proposed to be sold by the Company or any securities proposed to be sold for the account of any other Persons, with such priorities among the Company and sold under such other Persons as the Shelf Takedown. The Company shall have the right to select the Underwriter for such offering (which shall consist of one or more reputable nationally recognized investment banks. Notwithstanding the foregoing, (i) the Sponsor and the Sponsor Members (taken together) and (ii) the other Demanding Holders (taken together) may each demand not more than two Underwritten Shelf Takedowns, in each case pursuant to this Section 2.1.4 in any twelve (12) month period, for an aggregate of not more than four Underwritten Shelf Takedowns pursuant to this Section 2.1.4 in any twelve (12) month period. The Company may effect any Underwritten Offering pursuant to any then effective Registration Statement that is then available for such offeringdetermine.

Underwritten Shelf Takedown. Subject to Section 2.4 and Section 3.4, at At any time that a during the Shelf Registration Statement is effectivePeriod (subject to any Suspension Period), a Holder of at least 30% of the then-outstanding number any one or more Holders of Registrable Securities, any of the Sponsor Members or the Sponsor Securities (such Holder or the Sponsor in such capacityHolder, a “Demanding Shelf Public Offering Requesting Holder”) may request to sell all or part any portion of its their Registrable Securities in an Underwritten Offering underwritten offering that is registered pursuant to the Shelf Registration Statement (including, for the avoidance of doubt, a shelf registration filed pursuant to Section 2(a) or Section 2(b), each, an “Underwritten Shelf Takedown”” which term shall not include an Alternative Transaction); provided that and the Company shall only within fifteen (15) Business Days of such request amend or supplement the Shelf Registration Statement and/or prepare and file related Prospectus supplement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to an Underwritten Shelf Takedown; provided, that, and subject to Section 2(a)(v) below, the Company shall not be obligated to effect an (x) more than one (1) Underwritten Shelf Takedowns in any 12-month period for all Holders and (y) any Underwritten Shelf Takedown for a Holder of at least 30% if the aggregate gross proceeds expected to be received from the sale of the then-outstanding number of Registrable Securities if such offering shall include Registrable Securities proposed requested to be sold by in such Demanding Holder, either individually or together with other Demanding Holders, yielding aggregate gross proceeds in excess of $50,000,000 (based on then-current market prices) (the “Minimum Amount”). All requests for Underwritten Shelf Takedowns shall Takedown (including, for the avoidance of doubt, the Registrable Securities of the Holders (other than the Shelf Public Offering Requesting Holder) requested to be made by giving written notice included therein pursuant to 2(a)(iii) below and the Company, which shall specify the number of Other Registrable Securities to be offered and sold under the in such Underwritten Shelf Takedown. The Company shall have the right to select the Underwriter for such offering (which shall consist of one or more reputable nationally recognized investment banks. Notwithstanding the foregoing, (i) the Sponsor and the Sponsor Members (taken together) and (ii) the other Demanding Holders (taken together) may each demand not more than two Underwritten Shelf Takedowns), in each case pursuant to this Section 2.1.4 in any twelve (12the good faith judgment of the managing underwriter(s) month periodtherefor, for an aggregate of not more is less than four Underwritten Shelf Takedowns pursuant to this Section 2.1.4 in any twelve (12) month period. The Company may effect any Underwritten Offering pursuant to any then effective Registration Statement that is then available for such offering$20 million.

Underwritten Shelf Takedown. Subject to Section 2.4 and Section 3.4(a) If, at any time that during which a Shelf Registration Statement is effectivein effect (or in connection with its initial effectiveness), the Company shall receive a Holder request from a Sponsor Stockholder (the "REQUESTING STOCKHOLDER") to facilitate an Underwritten Public Offering and sale of at least 30% all or a portion of the then-outstanding Registrable Securities registered or registrable thereon (such request, an "UNDERWRITTEN SHELF TAKEDOWN REQUEST", and any Underwritten Public Offering conducted pursuant thereto, an "UNDERWRITTEN SHELF TAKEDOWN"), then the Company shall, subject to the limitations on the number of Underwritten Shelf Takedown Requests contained in Section 3.1(a), use all reasonable efforts to (1) file such amendments and supplements or reports under the Exchange Act, if applicable, so as to include in the Shelf Registration, and (2) facilitate, as expeditiously as possible, the sale of: (i) all Registrable SecuritiesSecurities for which the Requesting Stockholder has requested registration and sale under this Section 3.3, (ii) all other Registrable Securities of the same class or series that any other Stockholder has requested the Company to register and sell pursuant to Article 3 hereof, and (iii) any other securities proposed to be registered and sold by the Company or any securities proposed to be registered and sold for the account of any other Persons, with such priorities among the Company and such other Persons as the Company shall determine, all to the extent necessary to permit the disposition of the Registrable Securities to be so registered. (b) To the fullest extent permitted by applicable laws, the Company shall be liable for, and pay all Registration Expenses in connection with, any of the Sponsor Members or the Sponsor (such Holder or the Sponsor in such capacity, a “Demanding Holder”) may request to sell all or part of its Registrable Securities in an Underwritten Offering that is registered pursuant to the Shelf Registration Statement (an “Underwritten Shelf Takedown”); provided that . The Committee shall have the Company shall only be obligated right, after consultation with the Company, to effect select the underwriters, initial purchasers or placement agents, if any, the price and other terms upon which and the process by which any sale pursuant to an Underwritten Shelf Takedown for a Holder of at least 30% of is effected; provided, however, that the then-outstanding Committee shall not select any underwriter, initial purchaser or placement agent to which the Company shall reasonably object. (c) If the managing underwriter advises the Requesting Stockholder that, in its view, the number of Registrable Securities if such offering requested to be included in an Underwritten Shelf Takedown (including any Registrable Securities that any Participating Stockholder proposes to be included and any securities that the Company proposes to be included that are not Registrable Securities) exceeds the Maximum Offering Size, the Company shall include in such registration and/or such Underwritten Public Offering, in the priority listed below, up to the Maximum Offering Size: (i) first, all Registrable Securities proposed to be sold by such Demanding Holderthe Participating Stockholders that have not specified a minimum price for the sale of their Registrable Securities, either individually that have specified a minimum price that is less than or together with other Demanding Holders, yielding aggregate gross proceeds in excess of $50,000,000 (based on then-current market prices) (the “Minimum Amount”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice equal to the Company, which shall specify price determined by the Committee for such sale or that have otherwise indicated their desire to sell their Registrable Securities on a PRO RATA basis in proportion to the number of Registrable Securities to be offered and sold under by the Shelf Takedown. The Company shall have the right to select the Underwriter for such offering (which shall consist of one or more reputable nationally recognized investment banks. Notwithstanding the foregoing, (i) the Sponsor and the Sponsor Committee Members (taken together) and allocated, if necessary for the offering not to exceed the Maximum Offering Size, PRO RATA among them on the basis of the relative number of Registrable Securities owned by such Participating Stockholders), and (ii) second, any securities proposed to be sold by the Company or any securities proposed to be sold for the account of any other Demanding Holders (taken together) may each demand not more than two Underwritten Shelf TakedownsPersons, in each case pursuant to this Section 2.1.4 in any twelve (12) month period, for an aggregate of not more than four Underwritten Shelf Takedowns pursuant to this Section 2.1.4 in any twelve (12) month period. The with such priorities among such other Persons as the Company may effect any Underwritten Offering pursuant to any then effective Registration Statement that is then available for such offeringshall determine.