Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered. (b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. (c) The Company shall not be required to effect a registration pursuant to this Section 2.2: (i) prior to the fourth (4th) anniversary of the date of this Agreement; (ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective; (iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective; (iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days; (v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period; (vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or (vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance. (d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Atreca, Inc.), Investor Rights Agreement (Atreca, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the a “Initiating HoldersDemand Request”) from any Demand Holder that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000owned by such Demand Holder, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.23.2, effect, as expeditiously as reasonably possible, and in any event within ninety (90) days after the date such Demand Request is received, the registration under the Securities Act of all Registrable Securities in accordance with the intended method of distribution thereof that all the Demand Holder, and any Piggyback Holders pursuant to their rights under Section 3.3, request to be registered, subject to the provisions of Section 3.2(c). The Silver Lake Transferee Group shall have the right to make an unlimited number of Demand Requests.
(b) If the Initiating Holders intend Demand Holder intends to distribute the Registrable Securities covered by their its request by means of an underwritingunderwritten public offering, they it shall so advise the Company as a part of their request made pursuant to this Section 2.2 3.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable3.4. In such eventconnection with a Demand Request, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held being sold by all Initiating Demand Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation in respect of the number of securities related offering shall have the right to be underwritten (select the investment bank or banks and managers to administer such offering, including Registrable Securities) then the lead managing underwriter; provided, that if such Holders decline to exercise such right, the Company shall so advise all Holders of Registrable Securities that would otherwise be select the investment bank or banks and managers to administer the offering, but the Demand Holder shall continue to have such right pursuant to this Section 3.2(b) in any subsequent underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationpublic offering.
(c) The Notwithstanding anything herein to the contrary, the Company shall not be required obligated to effect a registration pursuant to this Section 2.2:
(i) prior 3.2 unless the Registrable Securities requested to be registered by the fourth (4th) anniversary of Demand Holder, together with the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant Registrable Securities requested to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating be registered by any Piggyback Holders pursuant to Section 2.2(a)3.3, are reasonably expected to result in aggregate gross cash proceeds (without regard to any underwriting discount or commission) in excess of (x) fifty million dollars ($50,000,000) in the Company gives notice to the Holders case of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety on Form S-1 or any similar or successor long-form registration or (90y) days;
twenty-five million dollars (v$25,000,000) if in the Company shall furnish to Holders requesting case of a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in or any particular jurisdiction in which the Company would be required to qualify to do business similar or to execute a general consent to service of process in effecting such successor short-form registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 3 contracts
Sources: Stockholders’ Agreement (First Advantage Corp), Stockholders' Agreement (First Advantage Corp), Stockholders' Agreement (First Advantage Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having with an anticipated aggregate offering price price, net of at least Selling Expenses, of $15,000,00010,000,000, then the Company shall, within thirty (30) 10 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, and in any event within one hundred and twenty (120) days after the date such request is given by the Initiating Holders, file a registration statement under the Securities Act of covering all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the earlier of (A) the fourth (4th) anniversary of the date of this AgreementAgreement or (B) the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective, provided that a registration shall not be deemed effected until it has been declared as such by the SEC;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date 180 days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offeringits Initial Offering within 90 days, other than pursuant provided that the Company is actively employing in good faith commercially reasonable efforts to a Special Registration Statement, within ninety (90) dayscause such registration statement to become effective;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously materially detrimental to the Company and its stockholders shareholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be effected at required to remain effective, because such timeaction would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Iterum Therapeutics LTD), Investor Rights Agreement (Iterum Therapeutics LTD)
Demand Registration. (ai) Subject to If the conditions Corporation receives at any time after six (6) months following the effective date of this Section 2.2the Corporation’s initial public offering, if the Company shall receive a written request from the Demand Holders of at least fifty twenty-five percent (5025%) of the Registrable Securities (the “Initiating Holders”) then outstanding that the Company Corporation file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Securities, then the Company Corporation shall, within thirty ten (3010) business days of after the receipt thereof, give written notice of such request to all Demand Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all which the Demand Holders request to be registered.registered and included in such registration, subject only to the limitations of this Section 5(f);
(bii) If the Demand Holders initiating the registration request under this Section 5(f) (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company Corporation as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 5(f) and the Company Corporation shall include such information in the written notice referred to in Section 2.2(a5(f)(i) or Section 2.4(a), as applicablehereof. In such event, the right of any Demand Holder to include its such Demand Holder’s Registrable Securities in such registration shall be conditioned upon such Demand Holder’s participation in such underwriting and the inclusion of such Demand Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Demand Holder) to the extent provided herein. All Demand Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)Corporation. Notwithstanding any other provision of this Section 2.2 or Section 2.45(f), if the underwriter advises underwriter(s) advise(s) the Company Corporation in writing that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) underwritten, then the Company Corporation shall so also advise all Demand Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be reduced as required by the underwriter(s) and allocated to among the Demand Holders of such Registrable Securities on a pro rata basis based on according to the number of Registrable Securities then outstanding held by all such Holders each Demand Holder requesting registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company Corporation and other stockholders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or and withdrawn from such underwriting shall be withdrawn from the registration.
(ciii) The Company shall not be required Corporation is obligated to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected only two (2) such registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below5(f), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;.
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a)Notwithstanding the foregoing, the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish Corporation furnishes to Demand Holders requesting the filing of a registration statement pursuant to this Section 2.2 5(f) a certificate signed by the Chairman President or Chief Executive Officer of the Board Corporation stating that in the good faith judgment of the Board of Directors of the CompanyCorporation, it would be seriously detrimental to the Company Corporation and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event then the Company Corporation shall have the right to defer such filing for a period of not more than ninety one hundred and twenty (90120) days after receipt of the request of the Initiating Holders; provided provided, however, that such the Corporation may not utilize this right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;.
(viv) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 All expenses incurred in connection with a registration pursuant to this Section 5(f), including without limitation, all federal and “blue sky” registration and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Corporation, and of one counsel for the participating Demand Holders (but excluding underwriters’ discounts and commissions), shall be borne by the Corporation. Each Holder participating in a request made registration pursuant to this Section 2.4 below; or
(vii5(f) shall bear its proportionate share of all discounts, commissions or other amounts payable to underwriters or brokers in any particular jurisdiction in which connection with such offering. Notwithstanding the Company would foregoing, the Corporation shall not be required to qualify pay for any expenses of any registration proceeding begun pursuant to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay 5(f) if the registration expenses thereforrequest is subsequently withdrawn at the request of the Demand Holders of a majority of the Registrable Securities to be registered; provided, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result however, that if at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business, or prospects of the Corporation not known to the Company)Demand Holders at the time of their request for such registration and have withdrawn their request for registration with reasonable promptness after learning of such material adverse change, in which case then the Demand Holders shall not be required to pay any of such withdrawn registration statement expenses and shall be counted as “effected” for purposes of retain their rights pursuant to this Section 2.25(f).
Appears in 3 contracts
Sources: Stockholders Agreement (Onconova Therapeutics, Inc.), Stockholders Agreement (Onconova Therapeutics, Inc.), Stockholders Agreement (Onconova Therapeutics, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000 (a “Demand Offering”)), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of . In no event shall any Registrable Securities to be included in excluded from such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationexcluded. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary expiration of the date of this Agreementrestrictions on transfer set forth in Section 2.10 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration StatementStatement (or such longer period as may be determined by Section 2.10 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, Statement within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 3 contracts
Sources: Registration Rights Agreement (C3.ai, Inc.), Registration Rights Agreement (C3.ai, Inc.), Registration Rights Agreement (C3.ai, Inc.)
Demand Registration. (a) Subject to the conditions restrictions of this Section 2.21.1, if at any time after the Company shall receive earlier of thirty-six (36) months after the date of this Agreement or one hundred eighty (180) days following the effective date of a written request from the Holders of at least fifty Qualified IPO, Investors holding not less than twenty percent (5020%) of the then outstanding Registrable Securities (shall have the “Initiating Holders”) right, by written notice to the Company, to request that the Company file a registration statement register the Registrable Securities under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000, then the Act. The Company shall, within thirty ten (3010) days of the receipt thereofof such notice, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 2.21.1(b) below, effect, use its best efforts to effect as expeditiously soon as reasonably possible, practicable the registration under the Securities Act of all Registrable Securities that all which the Holders request to be registeredregistered within twenty (20) days of the mailing of such notice by the Company. Any registration of Registrable Securities pursuant to a Registration Statement in accordance with this Section 1.1 is sometimes referred to herein as a “Demand Registration.”
(ba) If the Holder(s) requesting the registration (“Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 1.1 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a1.1(a), as applicable. In such event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The managing underwriter or underwriters in such underwriting shall be selected by the Initiating Holders, subject to the approval of the Company (such approval not to be unreasonably withheld) and prior written acceptance of such underwriter or underwriters by the Initiating Holders. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for so selected; provided, however, that no such underwriting by the Holders Holder shall be required to make any representations or warranties except as they relate to such Holder’s ownership of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters and authority to enter into the underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be reasonably acceptable limited to an amount equal to net proceeds from the Company)offering received by such Holder. Notwithstanding any other provision of this Section 2.2 or Section 2.41.1, if the underwriter advises the Company or the Initiating Holders in writing that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) underwritten, then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders), in proportion (as nearly as practicable) to the amount of Registrable Securities being sold in the underwriting by each such Holder; provided, however, that no securities other than Registrable Securities shall be covered by such registration.
(b) Holders of Registrable Securities shall be entitled to an aggregate of only two (2) Demand Registrations under this Agreement; provided, however, that the number of shares of Company shall be obligated to effect as many registrations as may be requested by the Holders in the event and so long as a registration pursuant to Form S-3 or any similar “short-form” registration statement is available, provided that (i) such request must cover Registrable Securities to be included in such underwriting and registration shall not be reduced unless all which, together with other securities of the Company entitled to inclusion in such registration, are first entirely excluded from proposed to be sold at an aggregate price to the underwriting public of not less than two million dollars ($2,000,000), and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from (ii) the registration.
(c) The Company shall not be required obligated to effect a any such registration pursuant to this Section 2.2:
(i) prior to until the fourth (4th) anniversary of the date of this Agreement;
(ii) after next calendar year if the Company has effected two (2) registrations on Form S-3 (or its then equivalent) pursuant to this Section 2.2, and such registrations have 1.1(b) in a calendar year.
(c) A registration will not count as a Demand Registration until the related Registration Statement has been declared or ordered effective;
effective by the Commission. The Registration Statement relating to the Demand Registration shall remain effective for up to six (iii6) during months. In any registration initiated as a Demand Registration, the Lockup Period Company will pay all Registration Expenses (as defined below)in Section 1.6 hereof) in connection therewith, other than pursuant to a Special Registration Statementwhether or not it becomes effective; provided that if the Holders of a majority of the Registrable Securities covered by a Registration Statement which has been filed (or which the Company makes reasonable good faith efforts notifies such Holders it is prepared to file within five days) but not yet become effective shall cause or request the Company to withdraw (or cease the preparation of) any such registration statement Registration Statement, the Holders of a majority of the Registrable Securities covered by such Registration Statement may thereafter request the Company to become effective;reinstate (or recommence preparation of) such Registration Statement, if permitted under the Securities Act, or to file another Demand Registration, in accordance with the procedures set forth herein, only upon agreeing in writing to reimburse the Company for all Registration Expenses over and above those Registration Expenses which the Company would not have incurred had such initial Demand Registration not been withdrawn.
(ivd) The Company shall not be required to undergo or pay for any special audit to effect any Registration Statement under this Section 1.1, and if within thirty (30) days of receipt of such a written request from Initiating Holders pursuant special audit would be required in order to Section 2.2(a)file or effect a registration hereunder, the Company gives notice shall be entitled to delay the Holders filing or effectiveness of such Registration Statement until a reasonable period of time following the completion of an audit in the ordinary course of the Company’s intention activities.
(e) The Company shall be entitled to file a registration statement postpone for a public offeringreasonable period of time, other than pursuant to a Special Registration Statement, within but not in excess of ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) calendar days after receipt of the request of from the Initiating Holders; provided that such right , filing of any Registration Statement otherwise required to delay be prepared and filed by it if the Company, at the time it receives a request shall for registration, reasonably and in good faith believes that it would be exercised by materially disadvantageous to the Company for such filing to be made at the time requested; provided, however, that the Company will not utilize this right more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(df) A registration The Company shall not be counted as “effected” for purposes obligated to file a Registration Statement during (i) the period ending one hundred eighty (180) days after the effective date of this Section 2.2 until such time as the applicable registration statement has been declared effective Company’s initial Registration Statement, or (ii) the ninety (90)-day period following the effectiveness of any other Registration Statement filed by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result Company in connection with an underwritten offering of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2its securities.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Solid Biosciences, LLC), Registration Rights Agreement (Solid Biosciences, LLC)
Demand Registration. (a) Subject to At any time after Terra Silex's fully funding the conditions Third Traunche Funding, a Holder of this Section 2.2, if Registrable Securities with a market value of not less than $500,000 may notify the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) in writing that it demands that the Company file a registration statement under the Securities Act covering the registration of all of the Holder's Registrable Securities then outstanding having an aggregate offering price Securities. Within ten days of at least $15,000,000receipt of such notice, then the Company shall, within thirty (30) days of the receipt thereof, shall give written notice of such request to all HoldersHolders of Registrable Securities, and should there be more than one. The Holders shall give the Company written election of their intention to have the Registrable Securities owned by them included in such a registration statement within ten (10) days of receipt of the Company's notice. The Company shall, subject to the limitations of this Section 2.2subsection 2(b), effecteffect as soon as practicable, as expeditiously as reasonably possibleand in any event within 120 days of the receipt of a Holder's request, the a registration under the Securities Act of all Registrable Securities that all which the Holder, or Holders request to have requested be registeredmade part of such registration statement ("Demand Registration").
(b) If a Holder whose shares are included in the Initiating Holders intend Demand Registration intends to distribute the Registrable Securities covered by their his/her/its request by means of an underwriting, they he/she /it shall so advise the Company as a part of their his/her/its request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a2(a) or Section 2.4(a), as applicableabove. In such event, the right of any Holder to include his/her/its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company as provided in Section 6) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be Company and reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included participating in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationa Demand Registration.
(c) The Company shall not be required is obligated to effect a registration only one Demand Registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date 2 of this Agreement;
(ii) after Agreement regardless of whether the Holder has elected to exercise all of its Stock Rights. The Company has effected two (2) registrations pursuant agrees to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause include all Registrable Securities held by all Holders in such registration statement to become effective;
(iv) if within thirty (30) days without cutback or reduction. In the event the Company breaches its obligation of receipt the preceding sentences, any Holder of a written request from Initiating Holders pursuant Registrable Security which was to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a have been included in such registration statement for a public offering, other than pursuant but was not shall be entitled to a Special second Demand Registration Statement, within ninety (90) days;
(v) if for such excluded securities and the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for keep such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised effective as required by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliancethis Agreement.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 3 contracts
Sources: Registration Rights Agreement (Daleco Resources Corp), Registration Rights Agreement (Daleco Resources Corp), Registration Rights Agreement (Daleco Resources Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) 20% of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 20% of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of underwriting discounts and commissions, is at least $15,000,0005,000,000), then the Company shall, within thirty (30) 30 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration; provided further, that if such reduction shall reduce the amount of Registrable Securities held by such Holders to be included in such underwriting and registration below 50% of the total amount of Registrable Securities requested to be included in such registration by the Initiating Holders, then such registration shall not be counted as a registration effected pursuant to Section 2.2 or Section 2.4. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective, there are no stop orders in effect and the Company has otherwise complied with its obligations set forth in Section 2.6 hereof with respect to such registrations, each at the time of any subsequent request to effect any additional registration pursuant to this Section 2.2;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date 180 days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offeringits Initial Offering within 90 days of the time of the Company’s receipt of such written request in which the Initiating Holders have been or will be permitted to include all the Registrable Securities so requested to be registered, other than pursuant subject to a Special Registration Statement, within ninety (90) daysSection 2.2(b);
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyCompany (the “Board”), it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request under this Section 2.2(c)(v) (together with any similar right in the case of a registration under Section 2.4) shall be exercised by the Company not more than twice in any twelve (12) -month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Trius Therapeutics Inc), Investor Rights Agreement (Trius Therapeutics Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If the Company shall receive receives at any time, a written request from the Holders of a majority of the Registrable Securities then outstanding (the "Initiating Holders") that the Company file a registration statement under the Act covering the registration of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000outstanding, then the Company shall, :
(i) within thirty (30) 10 days of the receipt thereof, give written notice of such request to all Holders;
(ii) use all reasonable efforts to file as soon as practicable, and in any event within 60 days of the receipt of such request, a registration statement for registration under the Act of all Registrable Securities which the Holders request to be registered, subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the subsection 1.2(b); and
(iii) use all reasonable efforts to cause such registration under the Securities Act of all Registrable Securities that all Holders request statement to be registeredbecome effective.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 subsection 1.2(a), and the Company shall include such information in the written notice referred to in Section 2.2(a) subsection 1.2(a). The underwriter will be selected by the Initiating Holders and shall be an underwriter of regional or Section 2.4(a), as applicablenational standing reasonably acceptable to the Company. In such event, the right of any Holder to include its Registrable Securities in such the registration 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 (unless otherwise mutually agreed by a majority in interest of the extent provided hereinInitiating Holders and such Holder). All Holders proposing to distribute their securities through such the underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 2.2 or Section 2.41.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant heretoto this subsection, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by among all such Holders (Holders, including the Initiating Holders), in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities to be included in such the underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to Notwithstanding the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2foregoing, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish furnishes to Initiating Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman Chief Executive Officer of the Board Company stating that the Company is engaged in an offering for itself or others or that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such a registration statement to be effected at such timefiled and it is therefore necessary to defer the filing of the registration statement, in which event the Company shall have the right to defer such taking action with respect to the filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice once in any twelve (12) twelve-month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration In addition, the Company shall not be counted as “effected” for purposes of obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.2 until 1.2 (i) after the Company has effected two registrations pursuant to this Section 1.2 and such time as the applicable registration statement has registrations have been declared or ordered effective by the SEC, or unless the Initiating Holders withdraw their request for (ii) if such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result would then be filed within six months of a material adverse change to the Company), in which case such withdrawn initial filing of an earlier demand registration statement shall be counted as “effected” for purposes of under this Section 2.21.2 or a registration under Section 1.9.
Appears in 3 contracts
Sources: Registration Rights Agreement (New World Coffee Manhattan Bagel Inc), Registration Rights Agreement (Brookwood New World Investors LLC), Registration Rights Agreement (Bet Associates Lp)
Demand Registration. (a) Subject to the conditions of this Section 2.22.1, if the Company shall receive receives a written request from the Holders of at least fifty percent (50%) of the Registrable Securities then outstanding (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having register shares with an aggregate offering price of at least $15,000,0005,000,000, then the Company shall, within thirty fifteen (3015) days of after the receipt thereof, give written notice of such request to all non-Initiating Holders, and subject . A non-Initiating Holder must notify the Company within thirty (30) days of receipt of such written notice if such non-Initiating Holder so desires to the limitations of this Section 2.2, have its Registrable Securities registered. The Company will use best efforts to effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all the Holders (both Initiating Holders and non-Initiating Holders) request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made demand pursuant to this Section 2.2 or any request pursuant to Section 2.4 2.1 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of underwriting. The underwriter or underwriters for such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting offering shall enter into an underwriting agreement in customary form with the be a nationally recognized underwriter or underwriters selected for such underwriting by the Holders of owning a majority of the Registrable Securities held by all Initiating Holders (which requested to be included in such offering and reasonably acceptable to the Company and such underwriter or underwriters shall be reasonably acceptable to enter into a reasonable and customary underwriting agreement with the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.42.1, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant heretoparticipating Holders, and the number of shares that may be included in the underwriting and registration shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on among the participating Holders in accordance with the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless and until all other securities of to be sold by the Company and any Persons that are not Holders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.22.1:
(i) prior to the fourth earlier of (4thA) the fifth anniversary of the Closing Date (as defined in the Series C Securities Acquisition Agreement) and (B) six months following the effective date of this Agreementthe registration statement pertaining to the Initial Public Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.22.1, and such registrations have been declared or ordered effectiveeffective and maintained effective for (A) one hundred twenty (120) days beyond the effective date or (B) until all shares so registered have been sold, whichever period is longer (provided, however, that such two registrations shall not include any registration pursuant to this Section 2.1 in which the number of Registrable Securities registered is reduced by more than twenty percent (20%) of the number of Registrable Securities that the Holders requested to be registered);
(iii) during the Lockup Period period starting with the date of filing of and ending on the date ninety (as defined below), other than 90) days following the effective date of a registration statement pertaining to any underwritten public offering made pursuant to a Special Registration Statementthis Section 2.1 or in which the Holders were given the opportunity to participate pursuant to Section 2.2 for not less than thirty percent (30%) of the amount of the offering; provided that the Company makes reasonable good faith efforts to cause such each registration statement to become effectivewas declared or ordered effective and maintained effective for (A) one hundred twenty (120) days beyond the effective date or (B) until all shares so registered have been sold, whichever period is longer;
(iv) if within thirty ten (3010) days of receipt of a written request from the Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (902.1(a) days;
(v) if the Company shall furnish to the Initiating Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman an officer of the Board Company stating either (A) that in the good faith judgment of the Board of Directors of the CompanyDirectors, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timetime or (B) the Company intends to make its Initial Public Offering within sixty (60) days of the date such request was received from the Initiating Holders, in which event the Company shall have the right to defer such filing for a period of not more than ninety sixty (9060) days after receipt of the request of the Initiating Holders; provided that provided, that, such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;; provided, further, that the Company shall not disclose any information that could be deemed material non-public information of the Company to any of the Initiating Holders during such delayed period; and
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 2.3 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A requested registration shall not be counted as “effected” for purposes of under this Section 2.2 until 2.1 may be rescinded prior to such time as the applicable registration statement has been being declared effective by the SECCommission by written notice to the Company from the Initiating Holder; provided, or unless however, that such rescinded registration shall not count as a registration initiated pursuant to this Section 2.1 if the Company shall have been reimbursed (pro rata by the Initiating Holders withdraw their request or in such other proportion as they may agree) for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration; provided further, elect however, that such Initiating Holders shall not be required to pay reimburse the registration expenses thereforCompany if such rescission shall have been caused by, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a or made in response to, the material adverse change to effect of an event on the business, prospects, properties, condition (financial or otherwise) or operations of the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 3 contracts
Sources: Investor Rights Agreement (Barrier Therapeutics Inc), Investor Rights Agreement (Barrier Therapeutics Inc), Investor Rights Agreement (Barrier Therapeutics Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000(a “Qualified Public Offering”), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration; and provided, further, that such allocation shall not operate to reduce the aggregate number of Registrable Securities to be included in such registration if any Holder does not request inclusion of the maximum number of shares of Registrable Securities, assuming conversion, allocated to such Holder pursuant to the above-described procedure, in which case the remaining portion of such Holder’s allocation shall be reallocated among those requesting Holders whose allocations did not satisfy their requests pro rata on the basis of the total number of shares of Registrable Securities held by such Holders, and this procedure shall be repeated until all shares of Registrable Securities which may be included in the registration on behalf of the Holders have been so allocated. Notwithstanding the foregoing, no such reduction shall reduce the amount of securities of the selling Holders included in the registration below thirty percent (30%) of the total amount of securities included in such registration, unless such offering is the Initial Offering and such registration does not include shares of any other selling stockholders, in which event any or all of the Registrable Securities of the Holders may be excluded in accordance with the immediately preceding clause. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offe1ing within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board board of Directors directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for Company is already subject to service in such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2jurisdiction.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Nimble Storage Inc), Investor Rights Agreement (Nimble Storage Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) 56% of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of all or a part of the Registrable Securities then outstanding having (i) an anticipated aggregate offering price price, net of at least underwriting discounts and commissions, of not less than $15,000,00050,000,000 (if the Company has not yet completed its Initial Public Offering) or (ii) an anticipated aggregate offering price, net of underwriting discounts and commissions, of not less than $10,000,000 (after the Company completes its Initial Public Offering), then the Company shall, within thirty (30) 30 days of the receipt thereof, give written notice of such request to all HoldersHolders and, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all the Initiating Holders request requested to be registeredregistered and any additional Registrable Securities requested to be included in such registration by any other Holder or Holders joining in such request as specified by notice given by each such Holder to the Company within 20 days after receipt of such written notice from the Company.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Common Stock that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company and securities of any other selling stockholders proposed to be sold by the Company or such selling stockholders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) six months following the Initial Public Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effectiveeffective by the SEC;
(iii) during the Lockup Period period starting with the date of filing with the SEC of, and ending on the date 180 days following the effective date of the registration statement pertaining to the Initial Public Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company Company, gives notice to the Holders of the Companycompany’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) 60 days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board or the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or business, to execute a general consent to service of process or to subject itself to taxation in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 3 contracts
Sources: Investor Rights Agreement (Inozyme Pharma, Inc.), Investor Rights Agreement (Inozyme Pharma, Inc.), Investor Rights Agreement (Inozyme Pharma, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.22.1, if the Company shall receive a written request from the Initiating Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate resulting in net offering price proceeds of at least $15,000,00020,000,000, then the Company shallwill (x) promptly give written notice of the requested registration to all Holders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the Company within thirty (30) days after receipt by such Holder or Holders of the receipt thereof, give initial written notice of such request from the Company, to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration be registered under the Securities Act within ninety (90) days of all Registrable Securities that all Holders request to be registeredthe request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.2 2.1 or any request pursuant to Section 2.4 2.3, and the Company shall include such information in the written notice referred to in Section 2.2(a2.1(a) or Section 2.4(a2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities Registrable Securities through such underwriting shall underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 2.2 2.1 or Section 2.42.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.22.1:
(i) prior to the fourth (4th) anniversary earlier of September 30, 2015 or six months after the date of this AgreementInitial Offering;
(ii) after the Company has effected two (2) three registrations pursuant to this Section 2.2, 2.1 and either (A) all such registrations have been declared or ordered effectiveeffective or (B) the request for such registration statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration; provided, however, that 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 2.1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following, other than pursuant the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that that, in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve 12 month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such ninety (1290) month day period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 2.3 below; or
(vii) in any particular jurisdiction in which if the Company would be required has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until 2.1 and such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2ordered effective.
Appears in 3 contracts
Sources: Investor Rights Agreement (Viewray Inc), Investor Rights Agreement (Viewray Inc), Investor Rights Agreement (Viewray Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If the Company shall receive receives, upon the expiration of six (6) months after the effective date of a QIPO, a written request from the Holders of at least fifty thirty percent (5030%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000outstanding, then the Company shall, within thirty (30) days of after the receipt thereof, give a written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 2.22.1 (b) (Demand Registration), effect, use its best efforts to effect as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all which the Holders request to be registeredregistered within twenty (20) days after the mailing of such notice by the Company. Registrations under this Section 2.1 (Demand Registration) shall be on such appropriate registration form of the SEC or other governmental entity as shall be selected by the Company and shall permit the disposition of such Registrable Securities in accordance with the intended method or methods of disposition specified in the request for such registration.
(b) If the Holders initiating the registration request under this Section 2.1 (Demand Registration) (the “Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2.1 (Demand Registration) and the Company shall include such information in the written notice referred to in Section 2.2(a2.1(a) or Section 2.4(a(Demand Registration), as applicable. The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 2.4(e) (Obligations of the Company)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 2.2 or Section 2.42.1 (Demand Registration), if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of on the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Holders shall so advise all Holders of the Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number amount of shares Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders), in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company held by each Holder; provided, however, that in each case the number of shares amount of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all securities other securities of the Company than Registrable Securities are first entirely excluded from the underwriting underwriting; and registration. Any provided, further, that in the case of registration pursuant to Section 2.1(a) (Demand Registration), that if the reduction reduces the total amount of Registrable Securities excluded or withdrawn from included in such underwriting to less than thirty percent (30%) of the Registrable Securities initially requested for registration by the Initiating Holders, such offering shall not be withdrawn from counted as a registration for the registrationpurpose of subsection (d)(i).
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to Notwithstanding the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2foregoing, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish furnishes to the Initiating Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman president or chief executive officer of the Board Company stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred and twenty (90120) days after receipt of the request of from the Initiating Holders; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice in any twelve (12) month period.
(d) In addition to and without prejudice to Section 2.14 (Termination of Registration Rights), the Company shall not be obligated to effect, or take any action to effect, any registration pursuant to this Section 2.1 (Demand Registration):
(i) after the Company has effected two (2) registrations pursuant to Section 2.1(a) (Demand Registration) (with ADRs or ADSs and their underlying Ordinary Shares constituting a single registration) and such registrations (x) have been declared or ordered effective, or (y) have been closed or withdrawn at the request of the Initiating Holders (other than as a result of a Material Adverse Effect);
(viii) during the period commencing on the date sixty (60) days prior to the date of filing (as estimated by the Company in good faith) of, and ending on the date one hundred and eighty (180) days after the effective date of (subject to such extension as provided in Section 2.13 (“Market Stand-Off” Agreement)), a registration subject to Section 2.2 (Company Registration) (other than a registration relating solely to the sale of securities to participants in a Company share plan, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Ordinary Shares being registered are Ordinary Shares issuable upon conversion of debt securities that are also being registered or an SEC Rule 145 transaction); provided that the Company uses its reasonable best efforts to cause such registration statement under Section 2.2 (Company Registration) to become effective; or
(iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form F-3 or Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in or any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such successor form that provides for short-form registration), qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2may be.
Appears in 2 contracts
Sources: Shareholder Agreement (Tencent Music Entertainment Group), Shareholder Agreements
Demand Registration. (a) Subject to Commencing on the conditions date six months after the closing of this Section 2.2the Company's initial public offering of Common Stock, if the Company shall receive upon receipt of a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating "Registration Request"), which shall include a description of such Holders”) that ' proposed method of distribution (which method may also include an underwritten offering by a nationally recognized underwriter selected by the Company file a registration statement under and reasonably acceptable to the Securities Act covering the registration of the Registering Holders) from Holders holding Registrable Securities then outstanding Shares having an aggregate expected offering price of at least $15,000,0001,000,000 (or, then if the expected offering price of all remaining Registrable Shares should be less than $1,000,000, such lesser amount), the Company shallshall (i) promptly give notice of the Registration Request to all non-requesting Holders and (ii) prepare and file with the SEC a registration statement for the sale of all Registrable Shares held by the requesting Holders and any other Holder who makes a written request of the Company to have her or his Registrable Shares included in such Registration Statement, which such written request must be received by the Company within thirty ten (3010) days after such Holder receives the notice of the receipt thereof, give written notice Registration Request (all of such request to all Holders, and subject collectively, the "Registering Holders"). The Company shall use all commercially reasonable efforts to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, effect the registration under the Securities Act of all such Registrable Securities that all Holders request to be registeredShares in accordance with the intended method of distribution thereof.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
more than three (i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (23) registrations pursuant to this Section 2.2, 2 and not more than one (1) such registrations have been declared or ordered effective;registration within any nine month period.
(iiic) during the Lockup Period (as defined below), other than Any registration statement filed pursuant to a Special Registration StatementRequest may, subject to the provisions of Section 2(d), include securities of the Company other than Registration Shares.
(d) If a registration pursuant to Section 2 is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Shares and, if permitted under this Agreement, other securities requested to be included in such offering exceeds the number of Registrable Shares and other securities, if any, that can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Shares initially requesting registration, the Company shall include in the registration, prior to the inclusion of any securities which are not Registrable Shares, the number of Registrable Shares requested to be included which, in the written opinion of the underwriters, can be sold in an orderly manner within the price range of the offering, pro rata among the respective Holders thereof on the basis of the amount of Registrable Shares owned by each such Holder requesting inclusing in such registration (it being understood that such managing underwriters shall have the right to eliminate entirely the participation in such registration of any securities which are not Registrable Shares).
(e) The Company shall be entitled to postpone, for a reasonable period of time not in excess of ninety (90) days, the filing or effectiveness of a registration statement if the Company determines, in the good faith exercise of its reasonable business judgment, as evidenced by a certificate signed by the President and CEO of the Company in a form reasonably satisfactory to the Registering Holders, that such registration and offering could materially adversely affect the bonafide financing plans of the Company or would require the disclosure of information, the premature disclosure of which could materially adversely affect the Company or any transaction under consideration by the Company; provided, however, that the Company shall not be entitled to such postponement more than once in any 360-day period.
(f) The Company shall not be obligated to file a registration statement pursuant to this Section 2 if the Company, within ten (10) days of the receipt of the Registration Request gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within 90 days of receipt of such Registration Request (other than with respect to a registration statement relating to a Rule 145 transaction or an offering solely to employees), provided that the Company makes reasonable is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective;.
(ivg) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the The Company gives notice to the Holders of the Company’s intention shall not be obligated to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by 2 within six (6) months immediately following the Chairman effective date of any registration statement pertaining to the securities of the Board stating that Company (other than a registration of securities in the good faith judgment of the a Rule 145 transaction or with respect to an employee benefit plan).
(h) The Board of Directors of the CompanyCompany may select the investment banker(s) and manager(s) to administer any offering initiated pursuant to this Section 2, it would be seriously detrimental subject to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt approval of the request holders of a majority of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting Shares initially requesting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hostopia.com Inc.), Registration Rights Agreement (Hostopia.com Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) holders of the Registrable Securities (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000owned by such Holder and its Affiliates, then the Company shall, within thirty fifteen (3015) days of after the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use its best efforts to effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all the Initiating Holders request requests to be registeredregistered and all Registrable Securities owned by any other Holder which notifies the Company in writing, within fifteen (15) days after receipt of the Company's notice contemplated by this paragraph, that it intends to participate in the demand registration contemplated herein (such notification to include the number of Registrable Securities sought to be included and the intended method or methods of distribution for such Registrable Securities), subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their its request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 2.2, or any request pursuant to Section 2.4 2.4, and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated to first among the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that ) and then second to any other shareholders of the Company (other than the Holders) on a pro rata basis. The number of shares of Registrable Securities to be included in such any underwriting and registration covered by this Section 2.2 shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such any underwriting pursuant to this Section 2.2(b) shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior within ninety (90) days following a previously effected registration pursuant to the fourth (4th) anniversary of the date of this AgreementSection 2.2 or Section 2.3;
(ii) after the Company has effected two (2) registrations initiated by the Holders pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of after receipt of a written request from Initiating Holders the Holder pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s 's intention to file a registration statement for make a public offering, other than pursuant to a Special Registration Statement, offering of its Common Stock within ninety one hundred twenty (90120) days; provided that such offering is, and remains, likely to be completed within such one hundred twenty (120) day period;
(viv) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(v) if the total Registrable Securities for which registration has been requested is for less than 500,000 shares of Common Stock or the reasonably anticipated aggregate price to the public of such offering would be less than $1,500,000;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Safeguard Scientifics Inc Et Al), Investor Rights Agreement (Tangram Enterprise Solutions Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the a Holder or Holders of at least fifty percent (50%) % of the Registrable Securities then outstanding (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of a majority of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000owned by such Initiating Holders, then the Company shall, within thirty (30) 30 days of the receipt thereof, give written notice of such request to all HoldersHolders and, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the use its commercially reasonable efforts to file a registration statement under the Securities Act of with the Commission covering all Registrable Securities that all the Initiating Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 2.2 or Section 2.42.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated first to the Holders who are holders of such Registrable Securities Series B Convertible Preferred Stock (or shares of Common Stock issued upon conversion thereof) and Series A Convertible Preferred Stock (or shares of Common Stock issued upon conversion thereof) on a pro rata basis based on the total number of Registrable Securities held by all such Holders (including the Initiating Holders)of Series B Convertible Preferred Stock and Series A Convertible Preferred Stock; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i1) prior to the fourth earlier of (4thA) anniversary of the date of this Agreementsix months following a Qualified Offering, and (B) December 31, 2004;
(ii2) after the Company has effected two (2) registrations pursuant to this Section 2.22.2(a), and such registrations have been declared or ordered effective;
(iii3) during the Lockup Period period starting with the date of filing of, and ending on the date 90 days following the effective date of, any registration statement (as defined below), other than pursuant to a Special Registration Statement; provided that ) of the Company makes reasonable good faith efforts to cause such registration statement to become effectiveCompany;
(iv4) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s 's intention to file make a registration statement for a public offering, other than pursuant to a Special Registration Statement, Qualified Offering within ninety (90) 90 days;
(v5) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 the Initiating Holders, a certificate signed by the Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyDirectors, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) twelve-month period;; or
(vi6) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (National Patent Development Corp), Investor Rights Agreement (Gp Strategies Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If at any time the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) Purchaser Request that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Act, then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all HoldersHolders and, and subject to the limitations of this Section 2.23(b) below, effect, shall file (as expeditiously as reasonably possiblepracticable, and in any event within thirty (30) days of the receipt of such request) and use its commercially reasonable best efforts to have declared effective, a registration statement under the Securities Act of with respect to all Registrable Securities that all which the Holders request to be registeredregistered within eighteen (18) days of the mailing of such notice by the Company in accordance with Section 8(g) below.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 3 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a3(a), as applicable. In such event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Holders participating in the underwriting and such Holder) to the extent provided herein. A majority in interest of the Holders of Registrable Securities participating in the underwriting, in consultation with the Company, shall select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 5(l)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders such Holders; provided, however, that no Holder (which underwriter or underwriters any of their assignees) shall be reasonably acceptable required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the Company)net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 2.2 or Section 2.43, if the underwriter advises the Company a Holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Holder shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, among holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Holders holders, until such holders have included in the underwriting all shares requested by such holders to be included, and (including the Initiating Holders); providedii) thereafter, howeveramong all other holders of Common Stock, if any, that have the right and have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the amount of shares of Common Stock owned by such holders. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 3(a), no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other securities would result in a reduction of the number of shares of Registrable Securities to be covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such underwriting and registration shall not be reduced unless all other securities would adversely impact the marketing of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationoffering.
(c) The Company shall not be required obligated to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected only two (2) registrations pursuant to this Section 2.2, (and only if such registrations have been declared or ordered effective;
registration would include Registrable Securities with an aggregate value of at least ten million dollars (iii) during the Lockup Period (as defined below$10,000,000), other than pursuant to a Special Registration Statement; provided that calculated using the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders closing price of the Company’s intention to file a registration statement for a public offering, other than Common Shares on the Trading Market on the date preceding the date of the Purchaser Request) pursuant to a Special Registration Statement, within ninety Purchaser Requests under this Section 3 (90) days;an offering which is not consummated shall not be counted for this purpose).
(vd) Notwithstanding the foregoing, if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 3, a certificate signed by the Chairman chief executive officer of the Board Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed by reason of a material pending transaction and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided Purchaser Request provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hanger Orthopedic Group Inc), Registration Rights Agreement (Ares Corporate Opportunities Fund Lp)
Demand Registration. (a) Subject to the conditions of this Section 2.22.1, if the Company shall receive a written request from the Holders of at least fifty percent (who together hold in aggregate not less than 50%) % of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 50% of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.22.1, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 2.1 or any request pursuant to Section 2.4 2.3 and the Company shall include such information in the written notice referred to in Section 2.2(a2.1(a) or Section 2.4(a2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 2.1 or Section 2.42.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.22.1:
(i) prior to the fourth date one hundred eighty (4th180) anniversary days following the effective date of the registration statement pertaining to the IPO or after five (5) years after the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.22.1, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below)if, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.1 a certificate signed by the Chairman of the Board (or, in the absence of a Chairman of the Board, a lead independent director or director exercising a similar function) stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 F-3 pursuant to a request made pursuant to Section 2.4 2.3 below; or
(viivi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (SB Global Advisers LTD), Registration Rights Agreement (Exscientia LTD)
Demand Registration. (a) Subject to If at any time after the conditions earliest of this Section 2.2(i) the first anniversary of the Closing Date, if (ii) the closing of a Qualified Public Offering, or (iii) the average daily trading volume of the shares of Common Stock exceeds 10,000 shares (as adjusted for stock splits, stock combinations or similar events) for ten consecutive Trading Days, the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) Investor Request that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Act, then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all HoldersHolders and, and subject to the limitations of this Section 2.23(b) below, effect, shall file (as expeditiously as reasonably possiblepracticable, and in any event prior to the registration applicable Filing Date) and use its best efforts to cause to become effective no later than the applicable Required Effectiveness Date, a Registration Statement under the Securities Act of with respect to all Registrable Securities that all which the Holders request to be registeredregistered within twenty (20) days of the mailing of such notice by the Company in accordance with Section 13(g) below.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 3 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a3(a), as applicable. In such event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. A majority in interest of the Holders of Registrable Securities participating in the underwriting, in consultation with the Company, shall select the managing underwriter or underwriters in such underwriting, which underwriter shall be reasonably acceptable to the Company. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 5(m)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders such Holders; provided, however, that no Holder (which underwriter or underwriters any of their assignees) shall be reasonably acceptable required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the Company)net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 2.2 or Section 2.43, if the underwriter advises the Company a Holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Holder shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, among holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Holders holders, until such holders have included in the underwriting all shares requested by such holders to be included, and (including the Initiating Holders); providedii) thereafter, howeveramong all other holders of Common Stock, if any, that have the right and have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the amount of shares of Common Stock owned by such holders. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 3(a), no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other securities would result in a reduction of the number of shares of Registrable Securities to be covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such underwriting and registration shall not be reduced unless all other securities would adversely impact the marketing of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationoffering.
(c) The Company shall not be required obligated to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected only two (2) registrations (and, in each case, only if such registration would include Registrable Securities with an aggregate value of at least five million dollars ($5,000,000), calculated using the stated offering price disclosed on the cover of the final prospectus covering such Registrable Securities) pursuant to an Investor Request under this Section 2.2, and 3 (an offering which is not consummated shall not be counted for this purpose unless such registrations have been declared or ordered effective;offering is withdrawn at the request of a majority in interest of the Holders participating in such Investor Request).
(iiid) during Notwithstanding the Lockup Period (as defined below)foregoing, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement Registration Statement pursuant to this Section 2.2 3, a certificate signed by the Chairman chief executive officer or chief financial officer of the Board Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed by reason of a material pending transaction and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersInvestor Request; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which . Likewise, the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of obligated to effect any registration pursuant to this Section 2.2 until such time as 3 within one hundred eighty (180) days after the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement Effective Date of a previous Registration Statement filed pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.23.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Tenby Pharma Inc), Investors’ Rights Agreement (Boulangeat Philippe)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 50% of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000outstanding, then the Company shall, within thirty (30) 30 days of the receipt thereof, give written notice of such request to all Holders, and and, subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of at least a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) if the anticipated minimum aggregate offering price to the public is less than $10,000,000;
(ii) prior to the fourth earlier of (4thA) the fifth anniversary of the date of this AgreementAgreement or (B) the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering (but in no event to exceed 214 days following the Initial Offering);
(iiiii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iiiiv) during the Lockup Period period that is 60 days before the Company’s good faith estimate of the filing or submission, as applicable, of a Company-initiated registration statement (as defined below), other than pursuant to a Special Registration Statement) pertaining to a public offering and ending on the date 180 days following the effective date of such Company-initiated registration statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Tricida, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty forty percent (5040%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having with an anticipated aggregate offering price price, net of underwriting discounts and commissions, of at least $15,000,0007,500,000 (a “Qualified Public Offering”), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use commercially reasonable efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation 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 enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyCompany and a majority in interest of the Initiating Holders). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such 120 day period, other than a Special Registration Statement;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Voting Agreement, Right of First Refusal and Co Sale Agreement (Sonim Technologies Inc), Investor Rights Agreement, Voting Agreement, Right of First Refusal and Co Sale Agreement (Sonim Technologies Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities Requisite Senior Preferred Majority (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of all or part of the Registrable Securities then outstanding having an aggregate offering price price, before deduction of underwriting discounts and commissions, of at least $15,000,00010,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possiblepossible and in any event within ninety (90) days of the receipt of such request, the registration under the Securities Act of all Senior Preferred Registrable Securities that all Holders request to be registeredregistered and thereafter to use its best efforts to cause the registration statement to be declared effective as soon as practicable.
(b) If the Initiating Holders intend to distribute the Senior Preferred Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Senior Preferred Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Senior Preferred Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to the CompanyInitiating Holders). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Senior Preferred Registrable Securities) then the Company shall so advise all Holders of Senior Preferred Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Senior Preferred Registrable Securities on a pro rata basis based on the number of Senior Preferred Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Senior Preferred Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company (including securities held by stockholders of the Company other than the Holders) are first entirely excluded from the underwriting and registration. Any Senior Preferred Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the fifth anniversary of the date of this AgreementAgreement or (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board (or, if no Chairman has been appointed, then the Chief Executive Officer or President of the Company) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period;
(viiv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for its Initial Offering within ninety (90) days; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective;
(v) if the Initiating Holders propose to dispose of shares of Senior Preferred Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(viivi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not Company is otherwise required to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2do so.
Appears in 2 contracts
Sources: Investor Rights Agreement (Procore Technologies, Inc.), Investor Rights Agreement (Procore Technologies, Inc.)
Demand Registration. (a) Subject to Commencing ninety (90) days after the conditions date of this Section 2.2Closing (as defined in the Investor Agreement), if the Company shall receive any Requesting Holders may make a written request from to the Holders of at least fifty percent Company (50%) of the Registrable Securities (the “Initiating Holders”specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the ▇▇▇▇ ▇▇▇) covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Stock. In such event, then the Company shallshall (x) within ten (10) days thereafter notify in writing all other Holders of Registrable Stock of such request, and (y) use its best efforts to cause to be registered under the 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within thirty forty-five (3045) days of after the receipt thereofCompany has given such notice, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to requested be registered.
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.2(a2(a) or Section 2.4(a), as applicableabove. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 2. All Holders proposing to distribute their securities Registrable Stock through such underwriting underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriters. Such underwriter or underwriters shall be reasonably acceptable selected by a majority in interest of the Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the Company). obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.2 or Section 2.42 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) then underwritten, the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held Stock requested to be included in such registration by all such Holders (including each Holder at the Initiating Holders)time of filing the registration statement; provided, however, that in the event of such limitation of the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to an additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Requesting Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.2:
2 during the period starting with the fourteenth (i14th) prior to the fourth (4th) anniversary of day immediately preceding the date of this Agreement;
(ii) after an anticipated filing by the Company has effected two (2) registrations pursuant to this Section 2.2of, and such registrations have been declared or ordered effective;
ending on a date ninety (iii90) during days following the Lockup Period (as defined below)effective date of, other than pursuant a registration statement pertaining to a Special Registration Statementpublic offering of securities for the account of the Company; provided provided, that the Company makes reasonable shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective;; and provided further, that the Company's estimate of the date of filing such registration statement shall be made in good faith.
(ive) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant The Company shall be obligated to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement effect and pay for a public offering, other than pursuant to a Special Registration Statement, within ninety total of only one (901) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company2, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made unless increased pursuant to Section 2.4 below2(c) hereof; or
(vii) in any particular jurisdiction in which the Company would be required provided, that a registration requested pursuant to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration this Section 2 shall not be counted as “effected” deemed to have been effected for purposes of this Section 2.2 until such time as the applicable registration statement 2(e), unless (i) it has been declared effective by the SECCommission, or unless the Initiating Holders withdraw their request for such (ii) if it is a shelf registration, elect not to pay it has remained effective for the registration expenses thereforperiod set forth in Section 3(b), and forfeit their right to one demand registration statement (iii) the offering of Registrable Stock pursuant to Subsection 2.5 such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than as a result any such action prompted by any act or omission of a material adverse change to the CompanyHolders), in which case such withdrawn registration statement shall and (iv) no limitation of the number of shares of Registrable Stock to be counted as “effected” for purposes of this underwritten has been required pursuant to Section 2.22(c) hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Innopet Brands Corp), Registration Rights Agreement (Innopet Brands Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty twenty five percent (5025%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least twenty five percent (25%) of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,0007,500,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, (i) file, as expeditiously as reasonably possible, and in any event no later than one hundred (100) days following the receipt of such written request, a registration statement pursuant to the Securities Act covering all Registrable Securities that all Holders request to be registered, and (ii) effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that in any offering other than the Initial Offering or a SPAC Transaction, the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering or SPAC Transaction;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period; provided further that the Company shall not register any securities for its own account or that of any other stockholder during such one hundred twenty (120) day period other than pursuant to a Special Registration Statement;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (PROCEPT BioRobotics Corp), Investor Rights Agreement (PROCEPT BioRobotics Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from Stockholders that the Holders of Company file a Form S-1 with respect to at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that then outstanding, then the Company shall as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Stockholders, file a registration statement Form S-1 under the Securities Act covering the registration of the all Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000that the Stockholders requested to be registered, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registeredSections 2.2(b) and 2.2(c).
(b) If the Initiating Holders Stockholders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable2.4. In such event, the right of any Holder the Stockholders to include its their Registrable Securities in such registration shall be conditioned upon such Holder’s the Stockholders’ participation in such underwriting and the inclusion of such Holder’s the Stockholders’ Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting The Stockholders shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Stockholders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders the Stockholders, provided, no such reduction shall reduce the amount of Registrable Securities that would otherwise be underwritten pursuant hereto, and of the number Stockholders below twenty percent (20%) of shares that may be included in the underwriting shall be allocated to the Holders total amount of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be securities included in such underwriting registration, unless such offering is the IPO and such registration shall does not be reduced unless include shares of any other selling stockholders, in which event any or all other securities of the Company are first entirely Registrable Securities of the Stockholders may be excluded from in accordance with the underwriting and registrationimmediately preceding sentence. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to one hundred eighty (180) days after the fourth (4th) anniversary effective date of the date of this Agreementregistration statement for an IPO;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared declared, have been ordered, or ordered have become effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below), 180) days following the effective date of the registration statement pertaining to a public offering (other than pursuant a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Special Registration StatementRule 145 transaction on Form S-4 or similar forms that may be promulgated in the future); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders the Stockholders pursuant to Section 2.2(a), the Company gives notice to the Holders Stockholders of the Company’s intention to file a registration statement for make a public offering, other than pursuant to a Special Registration Statement, offering within ninety (90) days; provided that, the Company makes reasonable good faith efforts to make such public offering during such period; provided, however, except in the case of a DI/Longitude Transfer (as defined below) to a Permitted Transferee (as defined below) in which case the following proviso shall not apply, this clause (iv) shall not apply or have any effect in the period prior to December 23, 2018, or upon an Event of Default for so long as such Event of Default is continuing;
(v) if the Company shall furnish to Holders requesting a registration statement the Stockholders pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental Seriously Detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersStockholders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;; provided, further, however, that in the event of the suspension of effectiveness of any registration statement pursuant to this Agreement, the applicable time period during which such registration statement is to remain effective shall be extended by that number of days equal to the number of days the effectiveness of such registration statement was suspended pursuant to this Section; or
(vi) if Initiating Holders the Stockholders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance2.4.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Stockholders Agreement (Evolus, Inc.), Stockholders Agreement (Evolus, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If at any time the Company shall receive (i) a written request from Purchaser Request, so long as the Purchaser Holders of hold at least fifty percent (50%) 30% of the Registrable Securities acquired by them on the date hereof, or (ii) a written Registration Request after the “Initiating Holders”) Purchaser Holders no longer hold at least 30% of the Registrable Securities acquired by them on the date hereof, that the Company file a registration statement Registration Statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Act, then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all HoldersHolders and, and subject to the limitations of this Section 2.23(b) below, effect, as expeditiously as reasonably possible, the registration shall use its reasonable best efforts to prepare and file a Registration Statement under the Securities Act of with respect to all Registrable Securities that all which the applicable Holders request to be registeredregistered within ten (10) days of the mailing of such notice by the Company, in accordance with Section 9(g) below (as expeditiously as practicable), and use its commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof.
(b) If the Initiating applicable Holders intend to distribute the Registrable Securities covered by their request by means of an underwritingunderwriting (whether it is on a firm commitment or best efforts (i.e., registered direct) basis), they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 3 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a3(a), as applicable. In such event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Holders participating in the underwriting and such Holder) to the extent provided herein. A majority in interest of the Holders of Registrable Securities participating in the underwriting, in consultation with the Company, shall select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 5(l)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders such Holders; provided, however, that no Holder (which underwriter or underwriters any of their assignees) shall be reasonably acceptable required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the Company)net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 2.2 or Section 2.43, if the underwriter advises the Company a Holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Holder shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, so long as the Purchaser Holders hold at least 30% of the Registrable Securities acquired by them on the date hereof, among the Purchaser Holders that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Purchaser Holders, until such Purchaser Holders have included in the underwriting all shares requested by such Purchaser Holders to be included, (including ii) then, among Holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Initiating aggregate amount of Registrable Securities held by all such Holders); provided, howeveruntil such Holders have included in the underwriting all shares requested by such Holders to be included, and (iii) thereafter, among all other holders of Common Stock, if any, that have the right and have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the amount of shares of Common Stock owned by such holders. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 3(a), no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other securities would result in a reduction of the number of shares of Registrable Securities to be covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such underwriting and registration shall not be reduced unless all other securities would adversely impact the marketing of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationoffering.
(c) The Company shall be obligated to effect only four (4) registrations (and only if such registration would include Registrable Securities with an aggregate value of at least ten million dollars ($10,000,000), calculated using the closing price of the Common Stock on the Trading Market on the date preceding the date of the Purchaser Request) pursuant to Purchaser Requests under this Section 3 (an offering which is not consummated shall not be required counted for this purpose).
(d) Notwithstanding the foregoing, the Company shall not be obligated to effect file a registration Registration Statement pursuant to this Section 2.2:
3, (i) prior during the 90 day period commencing on the effective date of any other registration statement filed by the Company relating to the fourth public offering of its Common Stock or securities convertible into Common Stock (4thother than on Forms S-4 or S-8 or any successor thereto) anniversary of the date of this Agreement;
or (ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to the applicable Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman chief executive officer of the Board Company stating that that, in the good faith judgment of the Board of Directors of the Company, it the Board has determined to file a registration statement relating to the public offering of its Common Stock or securities convertible into Common Stock (other than on Forms S-4 or S-8 or any successor thereto) within 30 days of the Purchaser Request or the Registration Request, during the period commencing on the date of such notice and ending upon the earliest of (A) effectiveness of such registration statement, (B) a decision by the Company not to pursue effectiveness of such registration statement or (C) 90 days after the filing of such registration statement; provided, however, that in the case of clause (ii) the Company may not utilize this right more than once in any twelve (12) month period; provided, further, that, for the avoidance of doubt, this clause (ii) shall be incremental to, and not in lieu of, the Company’s relief from its demand registration obligation under clause (i) above.
(e) Notwithstanding the foregoing, if the Company shall furnish to the applicable Holders a certificate signed by the chief executive officer of the Company stating that, in the good faith judgment of the Board of Directors of the Company, maintaining a Registration Statement’s effectiveness would be seriously materially detrimental to the Company and its stockholders for such registration statement Registration Statement to be effected at remain effective by reason of a material pending or imminently prospective transaction or development and it is therefore essential to suspend such timeRegistration Statement’s effectiveness, in which event the Company shall have the right to defer suspend such filing effectiveness for a period of not more than ninety sixty (9060) days in the aggregate after receipt of the request of Purchaser Request or the Initiating HoldersRegistration Request; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Global BPO Services Corp), Registration Rights Agreement (Stream Global Services, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority in interest of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed Cdn. $15,000,0005,000,000 (a “Qualified Public Offering”)), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for make a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;; or
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 or Form F-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Xenon Pharmaceuticals Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, Statement within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Avalanche Biotechnologies, Inc.)
Demand Registration. (a) Subject At any time after the 180 day period following the effective date of a Registration Statement filed in connection with the Company’s initial public offering of its equity securities, the Requesting Holders may request, in writing, on up to the conditions of this Section 2.2two (2) separate occasions, if the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file effect a registration statement under the Securities Act covering the registration on Form S-1 (or any successor form) of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all owned by one or more Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) . If the Initiating Requesting Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of in their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicablerequest. In the event such eventregistration is underwritten, the right of any Holder other Holders to include its Registrable Securities participate in such registration shall be conditioned upon on such Holder’s Holders’ participation in such underwriting and underwriting. Upon receipt of any such request from the inclusion Requesting Holders, the Company shall promptly give written notice of such Holder’s proposed registration to all other Holders. Such other Holders shall have the right, by giving written notice to the Company within thirty (30) days after the Company provides its notice, to elect to have included in such registration such of their Registrable Securities as such Holders may request in the underwriting to the extent provided hereinsuch notice of election. All Holders proposing to distribute their securities Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the an underwriter or underwriters selected for such underwriting by that is mutually agreeable to the Company and the Holders of holding a majority majority-in-interest of the Registrable Securities held that the Holders requested for inclusion in such registration. The Company shall, at its own expense and as expeditiously as possible, and in any event within ninety (90) days after the date such request is given by the Requesting Holders, file a Form S-1 (or any successor form) for all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable Registrable Securities that the Company has been requested to the Company)so register. Notwithstanding any other provision of this Section 2.2 or Section 2.4, if If the underwriter advises the Company that or the Holders of Registrable Securities requesting registration hereunder that, in its good faith view, marketing factors require a limitation of the number of securities Registrable Securities to be underwritten (including Registrable Securities) underwritten, then the Company Requesting Holders shall so advise all Holders of Registrable Securities that otherwise would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated to the among such Holders of such Registrable Securities on a pro rata basis based on Securities, including the Requesting Holders, in proportion (as nearly as practicable) to the number of Registrable Securities held owned by each Holder or in such other proportion as shall mutually be agreed to by all such Holders (including the Initiating selling Holders); provided, however, that the number of shares of Registrable Securities held by the Holders to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationunderwriting. Any For purposes of this Section 2.1(a), a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions this Section 2.1(a), fewer than fifty percent (50%) of Registrable Securities excluded that the Requesting Holders have requested to be included in such registration statement are actually included.
(b) At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or withdrawn from any successor form relating to secondary offerings, hereinafter, “Form S-3”), the Holders will have the right to require the Company to effect Registration Statements on Form S-3 of Registrable Securities having a minimum gross proceeds in each registration on Form S-3 of at least $2,500,000. Upon receipt of any such underwriting request, the Company shall be withdrawn from promptly give written notice of such proposed registration to all other Holders. Such other Holders shall have the registrationright, by giving written notice to the Company within thirty (30) days after the Company provides its notice, to elect to have included in such registration such of their Registrable Securities as such Holders may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, and in any event within forty-five (45) days after the date such initial request is given, file a Form S-3 for all Registrable Securities that the Company has been requested to so register.
(c) The Notwithstanding the foregoing obligations, if the Company shall not be required furnishes to effect the Holders requesting a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.1 a certificate signed by the Chairman of the Board Company’s president stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement would otherwise be effected at required to remain effective, because such timeaction would (i) materially interfere with a significant acquisition, in which event corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersHolders is given; provided provided, however, that such right to delay a request shall be exercised by the Company may not invoke this right more than twice once in any twelve (12) month period;; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such 90-day period other than an Excluded Registration.
(vid) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected [two] registrations pursuant to Subsection 2.1(a); or (iii) if Initiating the Requesting Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (viii) in any particular jurisdiction in which during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company would be required is actively employing in good faith commercially reasonable efforts to qualify cause such registration statement to do business become effective; or (ii) if the Company has effected [two] registrations pursuant to execute a general consent to service Subsection 2.1(b) within the twelve (12) month period immediately preceding the date of process in effecting such registration, qualification or compliance.
(d) request. A registration shall not be counted as “effected” for purposes of this Section 2.2 Subsection 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Requesting Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company)2.4, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2Subsection 2.1(d); provided, that if such withdrawal is during a period the Company has deferred taking action pursuant to Subsection 2.1(c), then the Requesting Holders may withdraw their request for registration and such registration will not be counted as “effected” for purposes of this Subsection 2.1(d).
Appears in 2 contracts
Sources: Registration Rights Agreement (Arvinas, Inc.), Registration Rights Agreement (Arvinas Holding Company, LLC)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive at any time after one hundred eighty (180) days after the effective date of the Initial Offering, a written request from the Holders of at least fifty percent (50%) 40% of the Registrable Securities (the “Initiating Holders”) that the Company file a Form S-1 registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having with an anticipated aggregate offering price price, net of underwriting discounts and commissions, of at least $15,000,0005,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possiblepossible (and in any event within 60 days after the date such request is given by the Initiating Holders), the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request in Section 2.2(a) by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary expiration of the date of this Agreementrestrictions on transfer set forth in Section 2.10 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period; provided, further, that the Company shall not register any securities for its own account or that of any other stockholder during such 120 day period, other than a Special Registration Statement;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below2.4; or
(viivi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for Company is already subject to service in such registration, elect not to pay jurisdiction and except as may be required under the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2Securities Act.
Appears in 2 contracts
Sources: Investor Rights Agreement (Connecture Inc), Investor Rights Agreement (Connecture Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of a majority of the Registrable Securities then outstanding having an and for which the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use reasonable best efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company, subject to the approval of the Holders of a majority at least fifty-five percent (55%) of the Registrable Securities held by all Initiating Holders (Holders, which underwriter approval shall not be unreasonably withheld or underwriters shall be reasonably acceptable to the Company)delayed. Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of after receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (LendingClub Corp), Investor Rights Agreement (LendingClub Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.23.4, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price reasonably anticipated gross proceeds of at least $15,000,00035,000,000, then the Company shall, within thirty (30) days of after the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.23.4, file and use reasonable best efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act and applicable state securities Laws of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 3.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a3.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.43.4, if the managing underwriter or underwriters advises the Company and the Holders in writing that in the good faith judgment of such managing underwriter or underwriters the marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.23.4:
(i) prior during any period in which the Company is eligible to use Form S-3 (in which case the Holders shall have the rights to registration and Shelf Take-Downs set forth in, and subject to the fourth (4th) anniversary of the date of this Agreementlimitations of, Section 3.2);
(ii) subject to Section 3.4(d), after the Company has effected two (2) registrations pursuant to this Section 2.23.4, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering subject to Section 3.3, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of after receipt of after a written request from Initiating Holders pursuant to Section 2.2(a3.4(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offeringoffering subject to Section 3.3, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 3.4 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety sixty (9060) days after receipt of the request of the Initiating Holders; provided that such right to delay a request (together with any similar right set forth in Section 3.2 or Section 3.7(a)) shall be exercised by the Company not more than twice three (3) times in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(viivi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance, in each case, where the Company would not otherwise be required to so qualify or execute a general consent, as applicable, but for such registration pursuant to this Section 3.4.
(d) A Notwithstanding any other provision of this Agreement, a registration pursuant to Section 3.2 or requested pursuant to this Section 3.4 shall not be counted deemed to have been effected (i) if the registration statement is withdrawn without becoming effective, (ii) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Authority for any reason other than a misrepresentation or an omission by an Initiating Holder and, as “effected” a result thereof, the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement; provided, that if such registration is a Shelf Registration Statement pursuant to Section 3.2, such registration shall be deemed to have been effected if such Shelf Registration Statement remains effective for purposes of this the period specified in Section 2.2 until such time as 3.7(a), (iii) if not a Shelf Registration Statement and the registration does not contemplate an underwritten offering, if the applicable registration statement has does not remain effective for at least 180 days (or such shorter period as will terminate when all securities covered by such registration statement have been declared sold or withdrawn); or if not a Shelf Registration Statement and such registration statement contemplates an underwritten offering, if it does not remain effective for at least 180 days plus such longer period as, in the opinion of counsel for the underwriter or underwriters, a prospectus is required by Law to be delivered in connection with the sale of Registrable Securities by an underwriter or dealer or (iv) in the event of an underwritten offering, if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than by reason of some wrongful act or omission by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2Holders.
Appears in 2 contracts
Sources: Stockholder Agreement (WEB.COM Group, Inc.), Stockholder Agreement (WEB.COM Group, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive receives a written request from the Holders of at least fifty seventy percent (5070%) of the then outstanding Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering for the registration sale of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Securities, then the Company shall, within thirty fifteen (3015) days of after the receipt thereof, give written notice of such request to all Holdersholders of Preferred Stock other than the Initiating Holders (the “Demand Notice”), and and, subject to the limitations of this Section 2.2, use its commercially reasonable efforts to effect, as expeditiously promptly as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities owned by the Initiating Holders that all the Initiating Holders request to be registeredregistered and all Registrable Securities owned by any other Holder which notifies the Company in writing, within thirty (30) days after receipt of the Demand Notice, that it intends to participate in the demand registration contemplated herein (such notification to include the number of Registrable Securities sought to be included and the intended method or methods of distribution for such Registrable Securities), subject to and in accordance with the terms, conditions, procedures and limitations contained in this Agreement.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the Demand Notice or the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for by a majority in interest of the Initiating Holders. No Holder shall be required in any such underwriting agreement to make any representations or warranties to or agreements with the Company or the underwriters other than customary representations, warranties or agreements regarding such Holders’ title to Registrable Securities and any written information provided by the Holders of a majority Holder to the Company expressly for inclusion in the related registration statement. All such selections shall be subject to the reasonable approval of the Registrable Securities held by all Initiating Holders (Company, which underwriter approval will not be unreasonably withheld, conditioned or underwriters shall be reasonably acceptable to the Company)delayed. Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting and registration shall be allocated to among the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the . The number of shares of Registrable Securities to be included in such any underwriting and registration covered by this Section 2.2 shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such any underwriting pursuant to this Section 2.2(b) shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, if the Company shall furnish to the Initiating Holders, a certificate signed by the CEO stating that in the good faith judgment of the Board, it would be materially detrimental to the Company and its stockholders for such registration statement to be filed because such action (i) materially interferes with a significant acquisition, corporate reorganization, or other similar transaction involving the Company, (ii) would require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or (iii) would render the Company unable to comply with requirements under the Securities Act or Exchange Act, the Company shall have the right to defer taking action with respect to such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than twice in any twelve (12)-month period.
(d) The Company shall not be required to effect a registration pursuant to this Section 2.2.:
(i) at any time prior to six months after the fourth (4th) anniversary of the date of this Agreement;Company’s Initial Offering
(ii) after the Company has effected two (2) registrations initiated by the Holders pursuant to this Section 2.2, and such registrations have been declared or ordered effective;; or
(iii) during the Lockup Period period starting with the date sixty (as defined below)60) days prior to the Company’s good faith estimate of the date of filing of, other than pursuant to and ending on a Special Registration Statementdate one hundred eighty (180) days after the effective date of a Company-initiated registration hereof; provided that the Company makes reasonable is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(de) A For purposes of this Section 2.2, a registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SECif, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Companyoperation of Section 2.2(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2are actually included.
Appears in 2 contracts
Sources: Investor Rights Agreement (TELA Bio, Inc.), Investor Rights Agreement (TELA Bio, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2Any Purchaser or Strategic Partner may, if the Company shall receive a written request from the Holders of at least fifty percent (50%) any time after consummation of the Registrable Securities (the “Initiating Holders”) Company's initial public offering of equity securities, request in writing that the Company file cause a registration statement to be filed under the Securities Act covering (on any Form then available to the registration Company) with respect to such of its Eligible Securities as it shall specify in such request, provided that (i) the Registrable Securities then outstanding having an aggregate gross proceeds from such offering price of will be or are reasonably expected to be not less than $5 million and (ii) such Purchaser or Strategic Partner includes at least $15,000,000, then the 25% of its Eligible Securities in its request. The Company shall, within thirty (30) days of the receipt thereof, shall promptly give written notice of such request to all Holders, the other Holders of Eligible Securities and subject afford them the opportunity of including in the requested registration statement such of their Eligible Securities as they shall specify in a written notice given to the limitations Company within thirty (30) days after their receipt of this Section 2.2, effect, as expeditiously as reasonably possiblethe Company's notice of the request for the filing of a registration statement. Following receipt of such notices, the Company shall promptly use its best efforts to cause all Eligible Securities with respect to which Holders shall have so requested registration to be registered under the Securities Act Act, all to the extent required to permit the sale or other disposition by the Holders of all Registrable the Eligible Securities that all so registered in the manner specified by such Holders request in their notices and pursuant to be registeredthis Section.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect file and cause to become effective more than two (2) registration statements at the demand of any Purchaser or Strategic Partner made under this Section 1.2.
(c) If the Holders of the Eligible Securities making such demand propose to sell their Eligible Securities in a firm commitment underwriting and the managing underwriter advises such Holders that not all Eligible Securities of such Holders can be included in such offering, then the requisite number of Eligible Securities shall be excluded from registration on a basis pro rata among the Holders of the Eligible Securities requesting such registration on the basis of the number of Eligible Securities held by each of them. If by virtue of this Section 1.2(c), more than 50% of the Eligible Securities which a Purchaser or Strategic Partner has demanded be registered are excluded from the registration statements then such Purchaser or Strategic Partner shall not be deemed to have exercised a demand registration right under this Section 1.2.
(d) Provided the Company has honored its obligations under Section 1.1, no demand registration right granted in this Section may be exercised by any Purchaser or Strategic Partner during any period of time beginning on the date the Company (i) files a registration statement with the Securities and Exchange Commission registering any of its securities for sale to the public or (ii) files a registration statement upon the demand of any other Strategic Partner pursuant to this Section 2.2:1.2, and ending on the earlier to occur of (A) 90 days after the date on which such registration statement is declared effective by the Securities and Exchange Commission or otherwise becomes effective, and (B) the 180th day after the date of such filing.
(ie) The demand registration rights granted in this Section 1.2 shall expire, if not exercised prior to thereto, on the fourth date on which more than 90% of all Eligible Securities (4th) anniversary as of the date of this Agreement;
(ii) after shall have been publicly sold by the Company has effected two (2) registrations Holders thereof in a public offering registered under the Securities Act of 1933 or pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or complianceRule 144 thereunder.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Purchase Agreement (Internet Capital Group Inc), Purchase Agreement (Internet Capital Group Inc)
Demand Registration. (a) Subject to Commencing on the conditions of this Section 2.2date hereof, if the Company shall receive any Requesting Holders may make a written request from to the Holders of at least fifty percent Company (50%) of the Registrable Securities (the “Initiating Holders”specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the ▇▇▇▇ ▇▇▇) covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Stock. In such event, then the Company shallshall (x) within ten (10) days thereafter notify in writing all other Holders of Registrable Stock of such request, and (y) use its best efforts to cause to be registered under the 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within thirty forty-five (3045) days of after the receipt thereofCompany has given such notice, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to requested be registered.
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.2(a2(a) or Section 2.4(a), as applicableabove. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 2. All Holders proposing to distribute their securities Registrable Stock through such underwriting underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriters. Such underwriter or underwriters shall be reasonably acceptable selected by a majority in interest of the Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; PROVIDED, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the Company). obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and PROVIDED FURTHER, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.2 or Section 2.42 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) then underwritten, the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders amount of Registrable Stock requested to be included in such registration by each Holder at the time of filing the registration statement; PROVIDED, that in the event of such Registrable Securities on a pro rata basis based on the number limitation of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to an additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Requesting Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.2:
2 during the period starting with the fourteenth (i14th) prior to the fourth (4th) anniversary of day immediately preceding the date of this Agreement;
(ii) after an anticipated filing by the Company has effected two (2) registrations pursuant to this Section 2.2of, and such registrations have been declared or ordered effective;
ending on a date ninety (iii90) during days following the Lockup Period (as defined below)effective date of, other than pursuant a registration statement pertaining to a Special Registration Statementpublic offering of securities for account of the Company; provided PROVIDED, that the Company makes reasonable shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective;; and PROVIDED FURTHER, that the Company's estimate of the date of filing such registration statement shall be made in good faith.
(ive) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant The Company shall be obligated to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement effect and pay for a public offering, other than pursuant to a Special Registration Statement, within ninety total of only one (901) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by 2, unless the Chairman number of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request demand registrations permitted shall be exercised by the Company not more than twice increased as provided in any twelve (12Section 2(c) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities hereof; PROVIDED, that may be immediately registered on Form S-3 a registration requested pursuant to a request made pursuant to this Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration 2 shall not be counted as “effected” deemed to have been effected for purposes of this Section 2.2 until such time as the applicable registration statement 2(e), unless (i) it has been declared effective by the SECCommission, or unless the Initiating Holders withdraw their request for such (ii) if it is a shelf registration, elect not to pay it has remained effective for the registration expenses thereforperiod set forth in Section 3(b), and forfeit their right to one demand registration statement (iii) the offering of Registrable Stock pursuant to Subsection 2.5 such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than as a result any such action prompted by any act or omission of a material adverse change to the CompanyHolders), in which case such withdrawn registration statement shall and (iv) no limitation of the number of shares of Registrable Stock to be counted as “effected” for purposes of this underwritten has been required pursuant to Section 2.22(c) hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Venturi Technologies Inc), Registration Rights Agreement (Beaulieu Group LLC)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary expiration of the date of this Agreementrestrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, Statement within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Snap Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty more than forty percent (5040%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities, and the Registrable Securities then outstanding having an anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed five million dollars $15,000,0005,000,000 (a “Qualified Public Offering”), then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all HoldersHolders of Registrable Securities. Within fifteen (15) days after such notice has been sent by the Company, and subject all other Holders of Registrable Securities may give written notice to the Company of such Holder’s intent to include some or all of its Registrable Securities in the registration. Subject to the limitations of this Section 2.2, the Company shall use its best efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders of Registrable Securities request to be registered.
(b) If the Initiating Holders or Requesting Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder of Registrable Securities to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders of Registrable Securities proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders or Requesting Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.such
Appears in 2 contracts
Sources: Investor Rights Agreement (Scynexis Inc), Investor Rights Agreement (Scynexis Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000), then the Company shallshall use commercially reasonable efforts to, within thirty (30) 30 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the fifth anniversary of the date of this AgreementAgreement or (B) the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date 180 days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) 90 days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Flexion Therapeutics Inc), Investor Rights Agreement (Flexion Therapeutics Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive receives a written request from the Holders of at least fifty percent (50%) 30% of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 20% of the Registrable Securities then outstanding having an held by the Initiating Holders (provided that the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00020,000,000 if the request is made prior to the Initial Offering, or $5,000,000 if the request is made after the Initial Offering), then the Company shall, within thirty (30) 30 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possiblepossible within 90 days following such request, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the fifth anniversary of the date of this AgreementAgreement or (B) six months following the effective date of a registration statement under the Securities Act for the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date 180 days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement within 90 days for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) daysan anticipated Qualified IPO;
(v) if the Company shall furnish furnishes to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Company’s Board of Directors (the “Board”) stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 100 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Crinetics Pharmaceuticals, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company Corporation shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities then outstanding (the “"Initiating Holders”") that the Company Corporation file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price to the public of at least not less than $15,000,0005,000,000, then the Company Corporation shall, within thirty (30) ten days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use its best efforts to effect, as expeditiously soon as reasonably possiblepracticable, and in any event within 90 days of the receipt of such request, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registeredregistered within 20 days of the mailing of such notice by the Corporation in accordance with Section 6.7.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company Corporation as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company Corporation shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyCorporation). Notwithstanding any other provision of this Section 2.2 or Section 2.42.2, if the underwriter advises the Company Corporation that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company Corporation shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided) PROVIDED, howeverHOWEVER, that the number of shares of Registrable Securities to be included in such the underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationoffering. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company Corporation shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier to occur of (4thA) 180 days after the Initial Offering and (B) the second anniversary of the date of this Agreement;; or
(ii) after the Company Corporation has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;; or
(iii) during the Lockup Period (as defined below)period starting with the date of filing of, other than pursuant to a Special Registration Statement; provided that and ending on the Company makes reasonable good faith efforts to cause such date 180 days following the effective date of the registration statement pertaining to become effective;the Initial Offering; or
(iv) if within thirty (30) ten days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company Corporation gives notice to the Holders of the Company’s Corporation's intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, make its Initial Offering within ninety (90) 90 days;; or
(v) if the Company Corporation shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyCorporation, it would be seriously detrimental to the Company Corporation and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company Corporation shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company Corporation not more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Series E Preferred Stock Purchase Agreement (Adesso Healthcare Technology Services Inc), Investors' Rights Agreement (Adesso Healthcare Technology Services Inc)
Demand Registration. (aA) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty not less than thirty percent (5030%) of the Registrable Securities then outstanding (the “Initiating Holders”"INITIATING HOLDERS") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having outstanding, and such offering provides for an anticipated aggregate offering price price, net of at least underwriting discounts and commissions, of not less than Twenty Million Dollars ($15,000,00020,000,000) (a "QUALIFIED PUBLIC OFFERING"), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all HoldersHolders and, and subject to the limitations of this Section 2.22.2 and the registration procedures set forth in Section 2.7 hereof, use its best efforts to effect, as expeditiously soon as reasonably possiblepracticable, the registration to register under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(bB) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(cC) The Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 2.2:2.2(a):
(iI) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(iiII) after the Company has effected two (2) registrations pursuant to this Section 2.22.2(a), and such registrations have been declared or ordered effective;
(iiiIII) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below), other than pursuant 180) days following the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(ivIV) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s 's intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) daysdays of such Company notice to the Holders;
(vV) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;; or
(viVI) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Informax Inc), Investor Rights Agreement (Informax Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Cirius Therapeutics, Inc.), Investor Rights Agreement (Cirius Therapeutics, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.21.2, if the Company shall receive a written request from either the Investor or Holders of at least fifty percent (50%) a majority of the Registrable Securities then outstanding (in either case, the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an such that the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,0005,000,000 (a "Qualified Public Offering"), then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.21.2, use its best efforts to effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered; provided that the Company shall file the registration statement no later than thirty (30) days following receipt of such notice. Such registration statement may be filed on any appropriate registration form for which the Company is then eligible (including Form S-3) that contemplated an offering of the type proposed by the Initiating Holders in the request made pursuant to the Section 1.2.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 1.2 or any request pursuant to Section 2.4 1.4 and the Company shall include such information in the written notice referred to in Section 2.2(a1.2(a) or Section 2.4(a1.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All The Company and all Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 1.2 or Section 2.41.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the total number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.21.2:
(i) prior to the fourth (4th) anniversary of the date of this AgreementDecember 31, 2001;
(ii) after the Company has effected two three (23) registrations pursuant to this Section 2.21.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting 30 days prior to the date of filing of, and ending on the date ninety (as defined below), other than pursuant 90) days following the effective date of the registration statement pertaining to a Special Registration Statementpublic offering of securities by the Company; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;; or
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 1.2, a certificate signed by the Chairman of the Board or Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such timetime (it being acknowledged that the Investor's decision to sell or any direct or perceived impact of that decision on any related business or commercial relationships between the Investor and the Company shall not be deemed seriously detrimental within the meaning of this provision), in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided provided, however, that such right to delay a request shall not be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor's Rights Agreement (Nokia Finance International B V), Investor's Rights Agreement (F5 Networks Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000outstanding, then the Company shall, within thirty (30) 30 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the such underwriting and registrationregistration does not include shares of any other selling stockholders. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the fifth anniversary of the date of this AgreementAgreement or (B) the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date 180 days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) 90 days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Company’s Board of Directors (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Anaptysbio Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request (a “Receipt of Registration Request”) from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000outstanding, then the Company shall, within thirty (30) days of the receipt thereofReceipt of Registration Request, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use best efforts to effect, as expeditiously as reasonably possiblewithin ninety (90) days of Receipt of Registration Request, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of at least a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) anniversary December 31, 2022 or (B) six (6) months after the effective date of the date of this Agreementfirst registration statement filed by the Company under the Securities Act;
(ii) if the anticipated net offering proceeds resulting from the sale of Registrable Securities for such registration are less than $50,000,000;
(iii) after the Company has effected two three (23) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iiiiv) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(ivv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(vvi) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety sixty (9060) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vivii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(viiviii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Metacrine, Inc.), Investor Rights Agreement (Metacrine, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000 (a “Qualified Public Offering”)), then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possiblepossible and in any event within sixty (60) days after the date such request is given by the Initiating Holders, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be Company and reasonably acceptable to a majority in interest of the Company)Initiating Holders. Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iiiii) during prior to the Lockup Period earlier of (as defined below), other than pursuant A) the third anniversary of the date of this Agreement or (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iviii) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) days;
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 the Initiating Holders, a certificate signed by the Chairman of the Company’s Board of Directors (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timetime because such action would (A) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company, (B) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, or (C) render the Company unable to comply with requirements under the Securities Act or Exchange Act, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(viivi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company)Section 2.5, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2. Registrations effected pursuant to this Section 2.2 shall not be counted as demands for registration or registrations effected pursuant to Section 2.4.
Appears in 2 contracts
Sources: Investor Rights Agreement (Applied Genetic Technologies Corp), Investor Rights Agreement (Applied Genetic Technologies Corp)
Demand Registration. (a) Subject to 3.1. At any time following the conditions of this Section 2.2Effective Date, if the Company shall receive a written Initiating Holders may request from the Holders of at least fifty percent (50%) in writing that all or part of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement Shares shall be registered under the Securities Act covering Act. Any such demand must request the registration of the Registrable Securities then outstanding having shares with an anticipated aggregate offering price of at least five million United States dollars ($15,000,000, then the Company shall, within 5,000,000). Within thirty (30) days after receipt of any such request, the receipt thereof, Company shall give written notice of such request to all any other Holders, if any, and shall include in such registration all Registrable Shares held by all such Holders who wish to participate in such demand registration and provide the Company with written requests for inclusion therein within fourteen (14) days after the receipt of the Company’s notice. As promptly as practicable thereafter, subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible8.1 hereof, the Company shall effect the registration of all Registrable Shares as to which it has received requests for registration under the Securities Act in the request for registration; provided, however, that the Company shall not be required to effect any registration under this Section 3 within a period of all Registrable Securities that all Holders request to be registeredninety (90) days following the effective date of a previous registration.
(b) 3.2. If the Initiating Holders intend to distribute the Registrable Securities Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 3.1 above and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable3.1. In such event, event the right of any Holder to include its Registrable Securities Shares in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities Shares in the underwriting to (unless otherwise mutually agreed by a majority in interest of the extent provided hereinInitiating Holders and such Holder) and such other agreements as such underwriter(s) shall reasonably request. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriter. Notwithstanding any other provision of this Section 2.2 or Section 2.43, if the managing underwriter advises the Company that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company shall so advise all Holders of Registrable Securities Shares that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting there shall be allocated excluded from such registration and underwriting, to the extent necessary to satisfy such limitation, first, shares held by shareholders other than the Holders; second, to the extent necessary, shares which the Company may wish to register for its own account, and thereafter, to the extent necessary, Registrable Shares held by the Holders of such Registrable Securities on a (pro rata basis based on to the respective number of Registrable Securities Shares held by all such the Holders (including participating in the Initiating Holdersregistration); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities Shares excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Share Purchase Agreement (Camtek LTD), Share Purchase Agreement (Camtek LTD)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive at any time after the earlier of (i) four (4) years after the date of this Agreement or (ii) one hundred eighty (180) days after the effective date of the Initial Offering, a written request from the Holders of at least fifty more than thirty percent (5030%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least forty percent (40%) of the Registrable Securities then outstanding and having an aggregate offering price price, net of at least underwriting discounts and commissions, of not less than $15,000,00010,000,000, then the Company shall, within thirty (30) days of the receipt thereof, shall promptly give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act (and any related qualification under blue sky laws or other compliance) of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) All Registration Expenses incurred in connection with registrations requested pursuant to this Section 2.2 shall be paid by the Company.
(d) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) four year anniversary of this Agreement or one hundred eighty (180) days following the effective date of this Agreementthe registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below), other than pursuant 180) days following the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyCompany (the “Board”), it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Ruckus Wireless Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) more than 40% of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having with an anticipated aggregate offering price before underwriting discounts and commissions, of at least not less than $15,000,00010,000,000, then the Company shall, within thirty (30) days of the receipt thereof, shall promptly give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, shall effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all the Initiating Holders request to be registered, together with all Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within 15 days after receipt of such written notice from the Company.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their a request made pursuant to this Section 2.2, or any request pursuant to Section 2.4, by means of an underwriting, they shall so advise the Company as a part of their such request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant heretounderwritten, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company (including securities to be issued by the Company) are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Marrone Bio Innovations Inc), Investor Rights Agreement (Marrone Bio Innovations Inc)
Demand Registration. (a) Subject The Company hereby agrees to use its best efforts to register all or any portion of the conditions Registrable Shares on one (1) occasion upon receipt of this Section 2.2, if the Company shall receive a written request from a holder (the Holders “Holder” or “Holders”) of at least fifty percent (50%) record of the Registrable Securities (the “Initiating Holders”) Shares that the Company file a registration statement under the Securities 1933 Act covering the registration of the Registrable Securities Shares then outstanding having an aggregate offering price of at least $15,000,000, then the outstanding. The Company shall, within thirty twenty (3020) days of the its receipt thereof, give written notice of such request to all Holders, and subject holders of record of Registrable Shares. The Holders of said Registrable Shares shall then have fifteen (15) days from the date of mailing of such notice by the Company to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities request that all Holders request to or a portion of their respective Registrable Shares be registeredincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 Agreement, and the Company shall include such information in the written notice to the other Holders of Registrable Shares referred to in Section 2.2(a1(a) or Section 2.4(a), as applicableabove. In such event, the right of any Holder to include its Registrable Securities Shares in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities Shares in the underwriting (unless otherwise mutually agreed by the Company, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3(e) below) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority mutual agreement of the Registrable Securities held by all Company and the Initiating Holders (Holder, which underwriter or underwriters agreement shall not be reasonably acceptable to the Company)unreasonably withheld. Notwithstanding any other provision of this Section 2.2 or Section 2.41, if the underwriter advises the Initiating Holder and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by among all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities have requested to be included participate in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company Each such registration shall not remain effective for a period of one hundred eighty (180) days, unless the Initiating Holder requests that such registration be required to effect a registration pursuant to this Section 2.2:
(i) terminated prior to the fourth (4th) anniversary expiration of the date of this Agreement;such period.
(iid) If, after a registration statement becomes effective, the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during advises the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided Holders that the Company makes reasonable good faith efforts to cause such registration statement is required to become effective;
(iv) if within be amended under applicable federal securities laws, the Holders shall suspend any further sales of their Registrable Shares, until the Company advises them that the registration statements has been amended, but not more than thirty (30) days. The one hundred eighty (180)-day time period referred to in subsection (c) during which the registration statement must be kept current after its effective date shall be extended for an additional number of business days equal to the number of receipt of a written request from Initiating Holders business days during which the right to sell the Registrable Shares was suspended pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;preceding sentence.
(ve) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of exclude an underwriter not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right reasonably acceptable to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or complianceit.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Integrated Security Systems Inc), Registration Rights Agreement (Integrated Security Systems Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If the Company shall receive receive, any time and from time to time on or after the date hereof, a written request from the Holders of at least fifty percent (50%) 25% of the Registrable Securities (the “Initiating Holders”) then outstanding that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Act, then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all HoldersHolders and shall, and subject to the limitations of this Section 2.2subsection 2.1(b) and 2.1(d), effect, use its best efforts to effect as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all which the Holders request in writing to be registeredregistered within twenty (20) days of the mailing of such notice by the Company.
(b) If the Initiating Holders initiating the registration request hereunder ("INITIATING HOLDERS") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2.1 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(asubsection 2.1(a), as applicable. The underwriter will be selected by a majority in interest of the Initiating Holders and reasonably approved by the Company. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 2.2 or Section 2.42.1, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the among all Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (thereof, including the Initiating Holders); provided, howeverin proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder. The Company shall have the right to include securities for its own account in such registration, that if permitted by the registration form to be filed and the underwriter so agrees, but only if such inclusion will not limit the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of securites offered by the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationHolders.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to Notwithstanding the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2foregoing, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.1, a certificate signed by the Chairman President or Chief Executive Officer of the Board Company stating that in the good faith judgment of the Board board of Directors directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice once in any twelve (12) month period.
(d) In addition and without limitation of Section 2.11 hereof, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.1:
(i) After the Company has effected two registrations pursuant to Section 2.1 and such registrations have been declared or ordered effective;
(viii) if During the ninety (90) day period prior to the Company's good faith estimate of the date of filing of a registration subject to Section 2.2 hereof; provided that the Company (i) is using its best efforts to cause such registration statement to become effective and (ii) provides written notice of such proposed filing to the Holders within thirty (30) days after receipt of the written request from the Holders pursuant to Section 2.1(a); or
(iii) If the Initiating Holders propose proposed to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 (or any successor form that provides for short-form registration) pursuant to a request made pursuant to Section 2.4 2.3 below; or
(viiiv) in If the Holders, together with the holders of any particular jurisdiction in which other securities of the Company would be required entitled to qualify to do business or to execute a general consent to service of process inclusion in effecting such registration, qualification propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters' discounts or compliance.commissions) of less than $100,000; or
(dv) A registration shall not be counted as “effected” If the Company has, within the six (6) month period preceding the date of such request, effected two (2) registrations on Form S-3 for purposes of the Holders pursuant to this Section 2.2 until such time as the applicable registration statement has 2.1 that have been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2ordered effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Deere & Co), Registration Rights Agreement (Xata Corp /Mn/)
Demand Registration. (a) Subject If, on or after the earlier to occur of December 31, 2006, or the conditions expiration of this Section 2.2, if 180 days after the Company shall receive have first offered its securities pursuant to a written request from registration under the 1933 Act, Initiating Holders of at least fifty percent (50%) shall notify the Company in writing that such Holders intend to offer or cause to be offered for sale to the public all or any portion of the Registrable Securities (under such circumstances as would require registration thereof under the “Initiating Holders”) that 1933 Act or qualification thereof under one or more state securities laws of jurisdictions in which the offer is to be made, the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effectwill, as expeditiously as reasonably possible, (i) notify Holders other than the registration Initiating Holders that it has been requested to register Registrable Securities under the Securities 1933 Act pursuant to this Section 8.2, and (ii) use its best efforts to cause such securities as may be requested by any Holder thereof to be registered under the 1933 Act, if applicable, and registered or qualified under any state securities laws to the extent required (in the opinion of all counsel referred to in this Section 8.2) to permit the sale or other disposition thereof in the manner described by the person requesting such registration. The Holders shall have a total of four such rights to demand registration of Registrable Securities that all Holders request under this Section 8.2. In addition to be registeredthe above-described demand registration rights, the holders of Preferred Stock of the Company shall have a total of two rights to demand registration of Registrable Securities held by them under this Section 8.2.
(b) If holders of securities of the Company other than Holders who are entitled, by contract with the Company, to have such securities included in such a registration (the “Other Holders”) request such inclusion, the Initiating Holders intend shall offer to distribute include the Registrable Securities covered by their request by means securities of an underwriting, they shall so advise the Company as a part of their request made such other Holders in any registration pursuant to this Section 2.2 or any request pursuant to Section 2.4 8.2. The Company (together with all Holders and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Other Holders proposing to distribute include their securities through in such underwriting registration) shall enter into an underwriting agreement in customary form with the underwriter or representative of the underwriters (the “Underwriter”) selected for to underwrite such underwriting offering by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable Holders, subject to the approval of the Company), which approval shall not be unreasonably withheld. Notwithstanding any other provision of this Section 2.2 or Section 2.48.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of on the number of securities shares to be underwritten (including Registrable Securities) then underwritten, the Company Initiating Holders shall so advise all Holders of Registrable Securities that and Other Holders whose securities would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders in proportion, as nearly as practicable, to the Holders respective amounts of such Registrable Securities on a pro rata basis based on which they had requested to be included in such registration and underwriting at the time of filing the registration statement, and to the extent that additional shares may be included in the underwriting, among all Other Holders requesting such inclusion in proportion, as nearly as practicable, to the respective amount of securities which they had requested to be included in such registration and underwriting. No Registrable Securities or other securities excluded from the underwriting by reason of the Underwriter’s marketing limitations shall be included in such registration. If any Holder or Other Holder who has requested inclusion in such registration as provided herein disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the Underwriter and the Initiating Holders. The securities so withdrawn shall also be withdrawn from registration. If the Underwriter has not limited the number of Registrable Securities held by all or other securities to be underwritten, the Company may include its securities for its own account in such Holders (including registration if the Initiating Holders); provided, however, that Underwriter so agrees and if the number of shares of Registrable Securities to be which would otherwise have been included in such registration and underwriting and registration shall will not thereby be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationlimited.
(c) The Company registration of Registrable Securities under this Section 8.2 shall not be required to effect at the Company’s expense, except that Holders and Other Holders participating in a registration pursuant hereto shall pay their pro rata brokerage or underwriting commissions or discounts relating to the sale owned by them; and the Company shall also pay the fees and expenses of any one special counsel retained by such Holders or Other Holders and except that after the second demand registration under this Section 2.28.2 demand registrations shall be at the expense of the Holders participating in the registration. Initiating Holders who exercise a right to demand registration under this Section 8.2 may withdraw the exercise and cause the Company either not to file or to withdraw the filing of the registration statement at anytime prior to the effectiveness of such statement, provided that:
(i) If the exercise is so withdrawn prior to the fourth (4th) anniversary filing of the date registration statement, then the withdrawal of this Agreementthe exercise will not be deemed to have been the exercise of a demand registration right;
(ii) after If effectiveness of the registration statement is delayed by more than 90 days by the Company has effected two (2) registrations pursuant and the exercise is withdrawn prior to this Section 2.2effectiveness of the registration statement, and such registrations then the withdrawal of the exercise will not be deemed to have been declared or ordered effectivethe exercise of a demand registration right;
(iii) during the Lockup Period (as defined below), Any withdrawals other than pursuant the withdrawals specified in (i) and (ii) above shall be deemed to be a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders demand pursuant to Section 2.2(a)8.2 hereof. If the withdrawn demand registration right is not deemed to have been the exercise of a demand registration right, as provided in subparagraphs (i) and (ii) above, then the withdrawing Holder shall pay or reimburse the legal, auditing and printing expenses reasonably incurred by the Company gives notice in connection with the attempted registration; but if the withdrawn demand registration right is deemed to be an exercise as provided in subparagraph (iii) above, then the Holders of Company shall pay all expenses incurred by it in connection with the Company’s intention to file a attempted registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by would have been responsible for paying the Chairman expenses of the Board stating that in the good faith judgment preparation of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliancestatement.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Note Purchase Agreement, Note Purchase Agreement (Exa Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of Investors holding at least fifty thirty percent (5030%) of the Registrable Securities then outstanding and held by the Investors (the “Initiating Holders”) ), that the Company file a registration statement under the Securities Act covering the registration of all or any portion of the Registrable Securities then outstanding having an aggregate offering price price, after deduction of underwriting discounts and commissions, of at least $15,000,00010,000,000, then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyHolders). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if If the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders)) or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration by the Investors shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the five year anniversary of the date of this Agreement, or (B) six (6) months following the effective date of the registration statement of the Qualified Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to Company-initiated registration (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided provided, that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Qualified Offering within ninety (90) days, provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously materially detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or;
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification qualification, or compliance., unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(dviii) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless if the Initiating Holders withdraw their do not request for that such registration, elect not offering be firmly underwritten by underwriters selected by the Initiating Holders (subject to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result consent of a material adverse change to the Company), ; or
(ix) if the Company and the Initiating Holders are unable to obtain the commitment of the underwriter described in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2clause (c)(viii) above to firmly underwrite the offer.
Appears in 2 contracts
Sources: Investor Rights Agreement (Udemy, Inc.), Investor Rights Agreement (Udemy, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act or comparable document filed with a foreign securities commission or regulatory authority covering the registration of at least fifty percent (50%) of the Registrable Securities then outstanding having an (or a lesser percentage if the proposed aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,0005,000,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act or pursuant to a receipt issued for a final prospectus by the applicable securities commission or regulatory authority in a foreign jurisdiction of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 2.6(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters mutually selected for such underwriting by the Holders of Company and a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)Holders. Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. Except as otherwise provided in this Section 2.2(b), the Company shall be entitled to include in any registration statement referred to in this Section 2.2 shares of Common Stock to be sold by the Company for its own account.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the second anniversary of the date of this AgreementAgreement or (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below), other than pursuant 180) days following the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from the Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) daysdays of the date of such request;
(v) if if, within thirty (30) days of receipt of a written request from the Initiating Holders pursuant to Section 2.2(a), the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it such registration would reasonably be seriously detrimental expected to have a material adverse effect on the Company and its stockholders for such registration statement to be effected at such timestockholders, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Infraredx Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty forty percent (5040%) of the Registrable Securities (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having with an anticipated aggregate offering price price, net of underwriting discounts and commissions, of at least one million dollars ($15,000,0001.000,000.00) (a "Qualified Public Offering"), then the Company shall, within thirty (30) days of after the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use its best efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 hereof and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a)) hereof, as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form (subject to the last two sentences of this paragraph) with the underwriter or underwriters selected for such underwriting by the Initiating Holders of holding at least a majority of the Registrable Securities then outstanding held by all the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.42.4 hereof, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. All of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriters included in each such underwriting agreement shall also be made to and for the benefit of such Holders and any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders. The Company shall use its reasonable efforts to ensure that no Holder shall be required in any such underwriting agreement to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, such Holder's Registrable Securities, such Holder's intended method of distribution and any other representations required by law or reasonably required by the underwriters.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the earlier of (A) the fourth (4th) anniversary of the date of this AgreementAgreement or (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below), other than pursuant 180) days following the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a)) hereof, the Company gives notice to the Holders of the Company’s 's intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, make its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;; or
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Epocrates Inc), Investor Rights Agreement (Epocrates Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) 25% of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 25% of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000outstanding, then the Company shall, within thirty (30) 10 business days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registeredregistered in the manner specified by the Initiating Holders.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request (the “Covered Registrable Securities”) by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Covered Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Covered Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities Covered Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Covered Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Covered Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Covered Registrable Securities on a pro rata basis based on the number of Covered Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Covered Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior In any jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification, or compliance unless the fourth (4th) anniversary of Company is already subject to service in such jurisdiction and except as may be required by the date of this AgreementSecurities Act;
(ii) after During the period starting with the date 60 days prior to the Company’s good faith estimated date of filing of, and ending on the date 180 days immediately following the effective date of any registration statement pertaining to securities of the Company (other than a registration of securities pursuant to a Special Registration Statement); provided that the Company is actively employing its best efforts to cause such registration statement to become effective;
(iii) After the Company has effected two (2) such registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during effective and pursuant to which at least 51% of the Lockup Period (as defined below)Covered Registrable Securities have been sold or remain sellable; provided, other than however, that if any such registration statement is terminated or withdrawn at the request of the Holders holding a majority of the outstanding Registrable Securities pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts registration initiated under Section 2.2(a), prior to cause such registration statement being declared or ordered effective, then the Company shall have been deemed to become effective;
(iv) if within thirty (30) days of receipt of have effected a written request from Initiating Holders registration pursuant to Section 2.2(a); provided further, the Company gives notice to however, that if the Holders holding a majority of the outstanding Registrable Securities elect to withdraw a registration statement pursuant to Section 2.2(a) as a result of the material adverse change in the business, assets, prospects, or operations of the Company’s intention to file , such registration shall not be counted as a registration statement demand for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;purposes of Section 2.2(a); or
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 the Initiating Holders, a certificate signed on behalf of the Board by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety 90 days (90the “Delay Period”) days after receipt of the request of the Initiating Holders; provided that that, such right to delay a request shall be exercised by the Company not no more than twice as to a registration demand under this Section 2.2 in any twelve (12) month rolling one-year period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities ; provided further, that the Company may be immediately registered on Form S-3 pursuant to a request made delay any such additional requests pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which 2.2 received during the Company would be required to qualify to do business or to execute a general consent to service Delay Period until the termination of process in effecting such registration, qualification or compliancethe Delay Period.
(d) A Except for registration shall statements on Form S-4 or registrations relating solely to employee benefit plans on Forms S-1 or S-8 or any successors thereto, the Company will not be counted as “effected” file with the Commission any other registration statement with respect to its Common Stock, whether for purposes its own account or that of other stockholders, from the date of receipt of a notice from the Initiating Holders requesting sale pursuant to an underwritten offering pursuant to this Section 2.2 until the earlier to occur of (i) 90 days following the effectiveness of such time as the applicable registration statement has been declared effective by or (ii) the SEC, or unless completion of the Initiating Holders withdraw their request for such registration, elect not to pay Period of Distribution of the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2contemplated thereby.
Appears in 2 contracts
Sources: Investor Rights Agreement (Xencor Inc), Investor Rights Agreement (Xencor Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least twenty percent (20%) of the Registrable Securities then outstanding having an (so long as the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00040,000,000), then the Company shallshall use its best efforts, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to the Company’s Initial Offering (or such longer period as defined belowmay be determined pursuant to Section 2.11 hereof), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Roku, Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty seventy-five percent (5075%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having with an anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000 (a “Demand Offering”)), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, provided that the number of shares of Registrable Securities held by the Holders to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationunderwriting. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) the expiration of the restrictions on transfer set forth in Section 2.11 following a Demand Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective; provided that, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions hereunder fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) daysdays of receipt of such written request and 90 days after the effective date of such registration statement, provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety sixty (9060) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Instructure Inc), Investor Rights Agreement (Instructure Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive at any time after April 1, 1998, a written request from the Initiating Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Securities, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.22.2(b), effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all at least 25% of the Registrable Securities held by such Initiating Holder on a pro rata basis; provided, however, that all Holders request to be registeredthe Company may register less than 25% of such Registrable Securities if the anticipated aggregate offering price, net of underwriting discounts and commissions, exceeds $5,000,000.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.42.2, if the underwriter advises the Company in writing that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders holders of such Registrable Securities registrable securities on a pro rata basis based on the number of Registrable Securities registrable securities held by all such Holders holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required obligated to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected more than two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;.
(iiid) during Notwithstanding the Lockup Period (as defined below)foregoing, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not no more than twice once in any twelve (12) month one-year period;.
(vie) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 All expenses incurred in connection with a registration pursuant to this Section 2.2 (excluding underwriters' discounts and commissions, which shall be paid by the selling Holders pro rata with respect to their included shares), including without limitation all registration, filing, qualification, printers' and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and disbursements of a single counsel for the selling Holders, shall be borne by the Company; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2.2 if the registration request is subsequently withdrawn, unless the withdrawal of the registration request results from either (a) intentional actions by the Company outside the normal course of business that materially reduce the feasibility of the registration proceeding, or (b) the discovery of information about the Company that was not known at the time of the Initiating Holders' request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which 2.2(a), and such information materially reduces the feasibility of the registration proceeding. If the Company would be is required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses thereforpursuant to this Section 2.2(e)(a) or (b), and then the Holders shall not forfeit their right to one demand registration statement rights pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.22.2 to a demand registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Vanguard Airlines Inc \De\), Warrant Agreement (Vanguard Airlines Inc \De\)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed Five Million Dollars ($15,000,0005,000,000)), then the Company shall, within thirty (30) days of after the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.42.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of no Registrable Securities to shall be included in such underwriting excluded unless and registration shall not be reduced unless until all other securities of the Company are first entirely excluded from the underwriting and registrationhave been excluded. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth two hundred and seventy (4th270) anniversary of days after the date of this Agreement;
(ii) after the Company has effected two one (21) registrations registration pursuant to this Section 2.2, and such registrations have registration has been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, Statement within ninety (90) days;
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;and
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(viiv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or compliance unless the Initiating Holders withdraw their request for Company is already subject to service in such registration, elect not to pay jurisdiction and except as may be required under the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (It&e International Group), Registration Rights Agreement (Lavin Philip T)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company 2.1 If Newco shall receive a written request from Sprint, or if Sprint is not a Holder at such time, from Holders who in the Holders of at least fifty percent (50%) aggregate hold a majority of the Registrable Securities (in either case, collectively, the “"Initiating Holders”") that the Company Newco file a registration statement Registration Statement under the Securities Act covering the registration of the any or all of such Holder's Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Securities, then the Company shall, Newco shall (i) within thirty (30) 10 days of the receipt thereof, give written notice of such request to all HoldersHolders of outstanding Registrable Securities known to Newco and to any additional addressees provided to Newco by any transferee of any Holder, and (ii) subject to the limitations of contained in this Section 2.2, effectArticle 2, as expeditiously soon as reasonably possiblepracticable and in any event within 45 days of the receipt of such request, file the Registration Statement to effect registration under the Securities Act of covering all Registrable Securities that all for which Newco receives a request from the Holders request and transferees thereof within 30 days of the delivery of the notice by Newco as required in clause (i) above. Newco, however, shall not be required to file a Registration Statement pursuant to this Article 2 unless the aggregate number of Registrable Securities requested to be registeredregistered is greater than 750,000 (as adjusted to reflect stock splits, reverse stock splits, stock dividends and similar actions).
(b) Section 2.2 If the an Initiating Holders intend Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company Newco as a part of their its request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2.1 and the Company Newco shall include such information in the written notice to the Holders referred to in Section 2.2(a) or Section 2.4(a), as applicable2.1. In such event, the right of any Holder to include its Registrable Securities in such registration 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 sell Registrable Securities through such underwriting (together with Newco as provided in Section 4.1(ix) of this Agreement and any other holder of shares of Common Stock permitted to participate in such registration pursuant to this Section 2.2) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders Initiating Holder(s) (provided the same are underwriters of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable recognized national standing, and provided that such selection is subject to the Companyapproval of Newco, which shall not be unreasonably withheld) upon the terms and conditions agreed upon among Newco, the Initiating Holder(s) and such underwriter(s). Notwithstanding any other provision of this Section 2.2 or Section 2.4Article 2, if the underwriter advises underwriter(s) advise the Company Initiating Holder(s) and Newco in writing that marketing or other factors require a limitation of the number of securities Registrable Securities to be underwritten (including Registrable Securities) underwritten, then the Company Newco shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holder(s), in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all which each Holder requested to be included in such Holders (including the Initiating Holders)registration; provided, however, that there shall be no reduction in the number of shares included in the registration by Sprint or its successor until all shares of Holders other than Sprint or its successor have been excluded from such registration. If the number of Registrable Securities to be underwritten has not been so limited, Newco may include shares of Common Stock for its own account (or for the account of other shareholders) in such registration if the underwriter(s) so agree and to the extent that, in the opinion of such underwriter(s), the inclusion of such additional shares will not adversely affect the offering and successful marketing of the Registrable Securities included in such registration and if the number of Registrable Securities that would otherwise have been included in such registration and underwriting and registration will not thereby be limited.
Section 2.3 Newco shall not be reduced unless all other securities obligated to effect a total of the Company are first entirely excluded from the underwriting more than four (4) registrations and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required obligated to effect a cause any registration pursuant to this Section 2.2:
(i) Article 2 to be declared effective unless at least nine months have elapsed since the prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations Registration Statement filed pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Article II ceased to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or complianceeffective.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sprint Corp), Registration Rights Agreement (Earthlink Network Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) any of the Registrable Securities GA Holder, the Benchmark Holder or the Housatonic Holder as a group, acting through its designee (such requesting Holder, the “Initiating HoldersHolder”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having (a “Demand Registration”) with an anticipated aggregate offering price price, net of underwriting discounts and commissions, of at least $15,000,00010,000,000 (a “Qualified Public Offering”), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Holder (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.42.2, if the underwriter advises the Company that marketing factors require a limitation the aggregate amount of the number of securities such Registrable Securities requested to be underwritten (including Registrable Securities) included in such offering is sufficiently large to have a material adverse effect on the success of such offering, then the Company shall so advise all Holders include in such registration only the aggregate amount of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that underwriter believes may be included in sold without any such material adverse effect and shall reduce the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares amount of Registrable Securities to be included in such underwriting registration, first as to the Company, second as to the Holders (including the Initiating Holder) who requested to participate in such registration (as a group, if applicable), pro rata within each group based on the number of Registrable Securities owned by each such Holder. For any Holder which is a partnership, limited liability company or corporation, the partners, retired partners, members, retired members and registration shall not be reduced unless all other securities stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the Company are first entirely excluded from foregoing Persons or the underwriting and registration. Any Registrable Securities excluded or withdrawn from Affiliates of such underwriting Holder shall be withdrawn from deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the registrationaggregate amount of shares carrying registration rights owned by all entities and individuals included in such “Holder,” as defined in this sentence.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.22.2 for any Holder:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.10 following the Initial Offering;
(ii) for each of the GA Holder, the Benchmark Holder and the Housatonic Holder, after the Company has effected two (2) registrations for such Initiating Holder pursuant to this Section 2.2, and such registrations have been declared or ordered effective and remain continuously effective for the lesser of (i) the period during which all Registrable Securities registered in such registration are sold and (ii) 120 days; provided, that (x) after such registration has become effective;, such registration or the related offer, sale or distribution of Registrable Securities thereunder has not been interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Initiating Holder and such interference is not thereafter eliminated and (y) the conditions specified in the underwriting agreement, if any, entered into in connection with such registration are satisfied or waived, unless any failure of such conditions to be satisfied or waived is by reason of a failure by the Initiating Holder.
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that (i) in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timetime or (ii) the Company intends to file a registration statement for a public offering within ninety (90) days other than pursuant to a Special Registration Statement, in which event then the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersHolder; provided that such the Company’s right to delay either a request Demand Registration under this Section 2.2(c)(iv), a S-3 Registration under Section 2.4(c)(iv) or to institute a Suspension Period under Section 2.6(a) shall be exercised by the Company not more than twice once in any twelve (12) month period and in the aggregate shall not be in effect for more than ninety (90) days in any three hundred and sixty five (365) day period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(viiv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration and Information Rights Agreement (Servicesource International LLC), Registration and Information Rights Agreement (Servicesource International LLC)
Demand Registration. (a) Subject The Company hereby agrees to use its best efforts to register all or any portion of the conditions Registrable Shares on one (1) occasion upon receipt of this Section 2.2, if the Company shall receive a written request from a holder (the Holders "Holder" or "Holders") of at least fifty percent (50%) record of the Registrable Securities (the “Initiating Holders”) Shares that the Company file a registration statement under the Securities 1933 Act covering the registration of the Registrable Securities Shares then outstanding having an aggregate offering price of at least $15,000,000, then the outstanding. The Company shall, within thirty twenty (3020) days of the its receipt thereof, give written notice of such request to all Holders, and subject holders of record of Registrable Shares. The Holders of said Registrable Shares shall then have fifteen (15) days from the date of mailing of such notice by the Company to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities request that all Holders request to or a portion of their respective Registrable Shares be registeredincluded in said registration.
(b) If the Initiating Holders intend to distribute the Registrable Securities Shares covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 Agreement, and the Company shall include such information in the written notice to the other Holders of Registrable Shares referred to in Section 2.2(a1(a) or Section 2.4(a), as applicableabove. In such event, the right of any Holder to include its Registrable Securities Shares in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities Shares in the underwriting (unless otherwise mutually agreed by the Company, the underwriter, the Initiating Holder and such Holder) is limited to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3(e) below) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority mutual agreement of the Registrable Securities held by all Company and the Initiating Holders (Holder, which underwriter or underwriters agreement shall not be reasonably acceptable to the Company)unreasonably withheld. Notwithstanding any other provision of this Section 2.2 or Section 2.41, if the underwriter advises the Initiating Holder and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Holder shall so advise all Holders of Registrable Securities that Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by among all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities have requested to be included participate in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company Each such registration shall not remain effective for a period of one hundred eighty (180) days, unless the Initiating Holder requests that such registration be required to effect a registration pursuant to this Section 2.2:
(i) terminated prior to the fourth (4th) anniversary expiration of the date of this Agreement;such period.
(iid) If, after a registration statement becomes effective, the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during advises the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided Holders that the Company makes reasonable good faith efforts to cause such registration statement is required to become effective;
(iv) if within be amended under applicable federal securities laws, the Holders shall suspend any further sales of their Registrable Shares, until the Company advises them that the registration statements has been amended, but not more than thirty (30) days. The one hundred eighty (180)-day time period referred to in subsection (c) during which the registration statement must be kept current after its effective date shall be extended for an additional number of business days equal to the number of receipt of a written request from Initiating Holders business days during which the right to sell the Registrable Shares was suspended pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;preceding sentence.
(ve) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of exclude an underwriter not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right reasonably acceptable to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or complianceit.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Integrated Security Systems Inc), Registration Rights Agreement (Integrated Security Systems Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,0007,500,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities then held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the fifth anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing or confidential draft submission of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to the Initial Offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board of Managers of the Company (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders securityholders for such registration statement to be effected at such timetime because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(viivi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliancecompliance unless already so qualified or consented to.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (DiCE MOLECULES HOLDINGS, LLC), Investor Rights Agreement (DiCE MOLECULES HOLDINGS, LLC)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if 2A.1 If the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating HoldersRegistration Request”) at any time that the Company file a registration statement under Section 2 above is not effective, from one or more Holders holding in the Securities Act covering the registration of the aggregate Registrable Securities then outstanding having an aggregate offering price a market value of at least $15,000,0001 million as of the time of the request to register under the Act, then the Company shall, :
(a) within thirty twenty (3020) days of the receipt thereof, give written notice of such request to all Holders; and
(b) use its best efforts to cause a registration statement, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of covering all Registrable Securities that all the Holders request to be registered, to be declared effective under the Act as promptly as possible after receipt of the Registration Request, but in any event on or prior to the 90th day after the Registration Request is deemed given to the Company, so as to permit the resale thereof and in connection therewith shall prepare and file a registration statement on such appropriate registration form of the SEC as shall be available to the Company. The written request referred to in this Section 2A.1 shall (i) specify the number of Registrable Securities intended to be offered and sold, (ii) describe the nature and method of the proposed offer and sale thereof, and (iii) contain an undertaking of the Holder(s) to provide all such information and materials and take all such action as may be reasonably required in order to permit the Company to comply with all applicable requirements of the SEC.
2A.2 If the Holders initiating the registration request hereunder (bthe “Initiating Holders”) If so elect, an offering of Registrable Securities pursuant to the registration statement may be effected in the form of an underwritten offering. In such event, the underwriter will be selected by the Initiating Holders intend to distribute holding a majority of the Registrable Securities covered by their request by means of an underwriting, they to be registered and shall so advise be reasonably acceptable to the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicableCompany. In such event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by Initiating Holders holding a majority of the Registrable Securities to be registered and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting and the Company shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by and shall provide the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to with such ancillary underwriting documents and legal opinions as are customary.
2A.3 In the Company). Notwithstanding any other provision event of this Section 2.2 or Section 2.4an underwritten offering, if the managing underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation in their opinion the amount of the number of securities Registrable Securities proposed to be sold in such underwritten (including Registrable Securities) offering exceeds the amount that can be sold in such underwritten offering, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, hereto and there shall be included in such underwritten offering the number of shares that may be included Registrable Securities which in the underwriting opinion of the managing underwriters can be sold, and such number shall be allocated to among all Holders thereof, including the Holders of such Registrable Securities Initiating Holders, on a pro rata basis based on upon the total number of Registrable Securities then held by all each such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration Holder.
2A.4 The Company shall not be reduced unless all obligated to effect, or to take any action to effect, any registration pursuant to this Section 2A:
(a) if the Holders, together with the holders of any other securities of the Company are first entirely excluded from the underwriting and entitled to inclusion in such registration. Any , propose to sell Registrable Securities excluded or withdrawn from and such underwriting shall be withdrawn from the registration.
other securities (cif any) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior at an aggregate price to the fourth (4th) anniversary public of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other less than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below$1,000,000; or
(viib) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such 2A.5 At any time as the applicable after a registration statement filed pursuant to Section 2 or Section 2A has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registrationCompany may delay the disclosure of material non-public information concerning the Company the disclosure of which at the time is not, elect not to pay in the registration expenses thereforgood faith opinion of the Board of Directors of the Company and its counsel, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result in the best interest of a material adverse change the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace Period”); provided, that the Company shall promptly (i) notify the Holders in which case such withdrawn registration statement shall be counted as “effected” for purposes writing of the existence of a Grace Period in conformity with the provisions of this Section 2.2(provided that in each notice the Company will not disclose the content of such material non-public information to the Holders, unless requested) and the date on which the Grace Period will begin, and (ii) notify the Holder in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed fifteen (15) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of thirty (30) days and the first day of any Grace Period must be at least two (2) trading days after the last day of any prior Grace Period (each, an “Allowable Grace Period”). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Holder receives the notice referred to in clause (i) and shall end on and include the later of the date the Holder receives the notice referred to in clause (ii) and the date referred to in such notice.
Appears in 2 contracts
Sources: Registration Rights Agreement (JGD Management Corp /Ny), Registration Rights Agreement (Gilat Satellite Networks LTD)
Demand Registration. (a) Subject to Commencing immediately upon the conditions date of this Section 2.2Closing (as defined in the Placement Agreement), if the Company shall receive any Requesting Holders may make a written request from to the Holders of at least fifty percent Company (50%) of the Registrable Securities (the “Initiating Holders”specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act covering (or a similar document pursuant to any other statute then in effect corresponding to the 1933 ▇▇▇) ▇▇vering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Stock. In such event, then the Company shallshall (x) within ten (10) days thereafter notify in writing all other Holders of Registrable Stock of such request, and (y) use its best efforts to cause to be registered under the 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within thirty forty-five (3045) days of after the receipt thereofCompany has given such notice, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to requested be registered.
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2.(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.2(a2.(a) or Section 2.4(a), as applicableabove. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 2. All Holders proposing to distribute their securities Registrable Stock through such underwriting underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriters. Such underwriter or underwriters shall be reasonably acceptable selected by a majority in interest of the Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the Company). obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.2 or Section 2.42 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) then underwritten, the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held Stock requested to be included in such registration by all such Holders (including each Holder at the Initiating Holders)time of filing the registration statement; provided, however, that in the event of such limitation of the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to an additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Requesting Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.2:
2 during the period starting with the fourteenth (i14th) prior day immediately preceding the date of an anticipated filing by the Company of, and ending on a date ninety (90) days following the effective date of, a registration statement pertaining to a public offering of securities for the fourth (4th) anniversary account of the Company; provided, that the Company shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and provided further, that the Company's estimate of the date of this Agreement;filing such registration statement shall be made in good faith.
(iie) after the The Company has effected shall be obligated to effect and pay for a total of only two (2) registrations pursuant to this Section 2.22, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders unless increased pursuant to Section 2.2(a)2.(c) hereof; provided, the Company gives notice to the Holders of the Company’s intention to file that a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement requested pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration 2 shall not be counted as “effected” deemed to have been effected for purposes of this Section 2.2 until such time as the applicable registration statement 2.(e), unless (i) it has been declared effective by the SECCommission, or unless the Initiating Holders withdraw their request for such (ii) if it is a shelf registration, elect not to pay it has remained effective for the registration expenses thereforperiod set forth in Section 3.(b), and forfeit their right to one demand registration statement (iii) the offering of Registrable Stock pursuant to Subsection 2.5 such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than as a result any such action prompted by any act or omission of a material adverse change to the CompanyHolders), in which case such withdrawn registration statement shall and (iv) no limitation of the number of shares of Registrable Stock to be counted as “effected” for purposes of this underwritten has been required pursuant to Section 2.22.(c) hereof.
Appears in 2 contracts
Sources: Placement Agreement (Micro Media Solutions Inc), Placement Agreement (Micro Media Solutions Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.22.1, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities Series D Preferred Stock (including holders of a majority of Common Stock issued upon conversion of the Series D Preferred Stock) Then Outstanding (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000any time after six months following the date hereof, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.22.1, use its best efforts to effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2.1 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a2.1(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, of
2.1 if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata PRO RATA basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); providedPROVIDED, howeverHOWEVER, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company Holders shall not be required to effect a registration pursuant to have no more than two demand registrations under this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance2.1.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (I Storm Inc), Registration Rights Agreement (I Storm Inc)
Demand Registration. (a) Subject to a. If at any time after the conditions of this Section 2.2, if Expiration Date the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) Holder Request that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Act, then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all HoldersHolders and, and subject to the limitations of this Section 2.23(b) below, effect, shall file (as expeditiously as reasonably possiblepracticable, and in any event within thirty (30) days of the receipt of such request) and use its commercially reasonable best efforts to have declared effective, a registration statement under the Securities Act of with respect to all Registrable Securities that all which the Holders request to be registeredregistered within eighteen (18) days of the mailing of such notice by the Company in accordance with Section 9(e) below.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the b. The right of any Holder to include its such Holder’s Registrable Securities in such a registration effected pursuant to a Holder Request 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 Holders participating in the underwriting and such Holder) to the extent provided herein. A majority in interest of the Holders of Registrable Securities participating in the underwriting, in consultation with the Company, shall select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 5(l)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders such Holders; provided, however, that no Holder (which underwriter or underwriters any of their assignees) shall be reasonably acceptable required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the Company)net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 2.2 or Section 2.43, if the underwriter advises the Company a Holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Holder shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, among holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Holders holders, until such holders have included in the underwriting all shares requested by such holders to be included, and (including the Initiating Holders); providedii) thereafter, howeveramong all other holders of Common Stock, if any, that have the right and have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the amount of shares of Common Stock owned by such holders. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 3(a), no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other securities would result in a reduction of the number of shares of Registrable Securities to be covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such underwriting and registration shall not be reduced unless all other securities would adversely impact the marketing of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationoffering.
(c) c. The Company shall not be required obligated to effect a only one (1) registration pursuant to this Section 2.2:
(i) prior to the fourth and only if such registration would include Registrable Securities with an aggregate value of at least ten million dollars (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below$10,000,000), other than pursuant to a Special Registration Statement; provided that calculated using the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders closing price of the Company’s intention to file a registration statement for a public offering, other than Common Shares on the Trading Market on the date preceding the date of the Holder Request) pursuant to a Special Registration StatementHolder Requests under this Section 3 (an offering which is not consummated shall not be counted for this purpose).
d. Notwithstanding the foregoing, within ninety (90) days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 3, a certificate signed by the Chairman chief executive officer of the Board Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed by reason of a material pending transaction and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided Holder Request provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Brooke Corp), Registration Rights Agreement (Brooke Credit CORP)
Demand Registration. (a) Subject to the conditions of this Section 2.21.2, at any time and from time to time following the date that is one hundred eighty (180) days after the consummation of the Initial Offering, if the Company shall receive a written request from the Holders of at least fifty thirty percent (5030%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering such that the registration of the Registrable Securities then outstanding having an anticipated aggregate offering price price, net of at least $15,000,000underwriting discounts and commissions, would constitute a Qualified IPO (each, a “Demand Registration”), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.21.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 1.2 or any request pursuant to Section 2.4 1.4 and the Company shall include such information in the written notice referred to in Section 2.2(a1.2(a) or Section 2.4(a1.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 1.2 or Section 2.41.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.21.2:
(i) prior to the fourth (4th) anniversary expiration of the date of this Agreementrestrictions on transfer set forth in Section 1.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.21.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a1.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, Statement within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 1.2 a certificate signed by the Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously materially detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety sixty (9060) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 1.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Iridium Communications Inc.), Limited Liability Company Agreement (Iridium Communications Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if at any time following the Company shall receive a written request from date that is 180 days after the Company’s Qualified Initial Public Offering, the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) may request in writing (the “Demand Request”) that the Company file a registration statement under the Securities Act covering the registration of at least 20% of the Registrable Securities then outstanding and having an aggregate offering price to the public of at least not less than $15,000,00020,000,000. The Demand Notice shall set forth the number of Registrable Securities owned by the Initiating Holders to be included in the registration statement. In such event, then the Company shall, :
(i) within thirty (30) 30 days of the receipt thereofof the Demand Request, give written notice of such request to all Holders, and Holders (the “Demand Notice”);
(ii) subject to the limitations of set forth in this Section 2.2, effectfile, as expeditiously soon as reasonably possiblepracticable, the a registration statement under the Securities Act of all covering the Registrable Securities that all specified by the Initiating Holders request in the Demand Request and such other Registrable Securities with respect to which the Company has received written requests for inclusion within such registration statement within 15 days after the Company has given the Demand Notice; and
(iii) use its commercially reasonable efforts to cause the registration statement to be registereddeclared effective.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request Demand Request by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 in the Demand Request, and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicableDemand Notice. In such event, the right of any Holder to include its Registrable Securities in such registration 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 Holders proposing to distribute their securities through by means of such underwriting underwritten offering shall enter into an underwriting agreement in customary form with the an underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be Company and reasonably acceptable to the Company)Initiating Holders. Notwithstanding any other provision of this Section 2.2 or Section 2.42.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration Company shall not be reduced unless first exclude all other securities of the Company are first entirely excluded and of stockholders other than the Holders from the underwriting and registrationregistration before it reduces the number of Registrable Securities requested by the Holders. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and and, subject to Section 2.5, such registrations have been declared or ordered effective;
(iiiii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided period starting with the date that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) is 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice prior to the Holders filing of and ending on the Company’s intention to file date 180 days following the effective date of, a registration statement for pertaining to a public offering, other than pursuant to a Special Registration Statement, within ninety (90) daysStatement relating to an employee benefit plan;
(viii) if the Company shall furnish to the Initiating Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman Chief Executive Officer of the Board Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after following receipt of the request Demand Request;
(iv) if the Company shall furnish to the Initiating Holders a certificate signed by the Chief Executive Officer of the Initiating HoldersCompany that it intends to engage in a registered public offering pursuant to Section 2.3 within 90 days following receipt of the Demand Request; provided that such right to delay a request shall be exercised by the Company not more than twice is actively employing in any twelve (12) month period;good faith all reasonable efforts to file and cause such registration statement to become effective, or
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (SCP Vitalife Partners II LP), Investor Rights Agreement (Recro Pharma, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,0007,500,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date 180 days following the effective date of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman Chief Executive Officer of the Board Company stating that in the good faith judgment of the Board of Directors of the CompanyCompany (the “Board”), it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Forty Seven, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty more than thirty percent (5030%) of the Registrable Securities then outstanding (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price to the public in excess of at least $15,000,00015,000,000 (a "Qualified Public Offering"), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use its best efforts to effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) second anniversary of the date of this Agreement;; or
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;; or
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below), other than pursuant 180) days following the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s 's intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, make its Initial Offering within ninety (90) days;; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Landacorp Inc), Investor Rights Agreement (Landa Management Systems Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.22.1, if the Company shall receive a written request from the Holders of at least fifty percent (50%) who together hold in aggregate not less than 25% of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least 25% of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.22.1, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 2.1 or any request pursuant to Section 2.4 2.3 and the Company shall include such information in the written notice referred to in Section 2.2(a2.1(a) or Section 2.4(a2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 2.1 or Section 2.42.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.22.1:
(i) prior to the fourth date one hundred eighty (4th180) anniversary days following the effective date of the date of this Agreementregistration statement pertaining to the IPO (or such longer period as may be determined pursuant to Section 2.9 hereof);
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.22.1, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below)if, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.1 a certificate signed by the Chairman of the Board (or, in the absence of a Chairman of the Board, a lead independent director or director exercising a similar function) stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 F-3 pursuant to a request made pursuant to Section 2.4 2.3 below; or
(viivi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Autolus Therapeutics PLC), Registration Rights Agreement (Arix Bioscience PLC)
Demand Registration. (a) Subject to the conditions of this Section 2.22.1, if the Company shall receive a written request from the Initiating Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate resulting in net offering price proceeds of at least $15,000,00030,000,000, then the Company shall, within thirty will (30x) days of the receipt thereof, promptly give written notice of such request the requested registration to all HoldersHolders and (y) prepare and file a registration statement and otherwise use its best efforts to cause such shares, and subject all Registrable Securities of any Holder or Holders joining in such registration pursuant to a written request delivered to the limitations Company within 30 days after receipt by such Holder or Holders of this Section 2.2initial written notice from the Company, effect, as expeditiously as reasonably possible, the registration to be registered under the Securities Act within 90 days of all Registrable Securities that all Holders request to be registeredthe request.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.2 2.1 or any request pursuant to Section 2.4 2.3, and the Company shall include such information in the written notice referred to in Section 2.2(a2.1(a) or Section 2.4(a2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities Registrable Securities through such underwriting shall underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 2.2 2.1 or Section 2.42.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.22.1:
(i) prior to the fourth (4th) anniversary earlier of December 31, 2014 or six months after the date of this AgreementInitial Offering;
(ii) after the Company has effected two (2) three registrations pursuant to this Section 2.2, 2.1 and either (A) all such registrations have been declared or ordered effectiveeffective or (B) the request for such registration statement has been subsequently withdrawn by the Initiating Holders and the Initiating Holders have not paid the Registration Expenses of such withdrawn registration;
(iii) during the Lockup Period (as defined below)period starting with the date of filing of, other than pursuant and ending on the date 180 days following, the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) 90 days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that that, in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 2.3 below; or
(vii) in any particular jurisdiction in which if the Company would be required has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until 2.1 and such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2ordered effective.
Appears in 2 contracts
Sources: Investor Rights Agreement (Roka BioScience, Inc.), Investor Rights Agreement (Roka BioScience, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If at any time the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) Purchaser Request that the Company file a registration statement Registration Statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Act, then the Company shall, within thirty ten (3010) days of the receipt thereof, give written notice of such request to all HoldersHolders and, and subject to the limitations of this Section 2.23(b) below, effect, shall file (as expeditiously as reasonably possiblepracticable, and in any event within thirty (30) days of the registration receipt of such request) and use its commercially reasonable commercially reasonable efforts to have declared effective, a Registration Statement under the Securities Act of with respect to all Registrable Securities that all which the Holders request to be registeredregistered within ten (10) days of the mailing of such notice by the Company in accordance with Section 8(g) below.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 3 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a3(a), as applicable. In such event, the right of any Holder to include its such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Holders participating in the underwriting and such Holder) to the extent provided herein. A majority in interest of the Holders of Registrable Securities participating in the underwriting, in consultation with the Company, shall select the managing underwriter or underwriters in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 5(l)) enter into an underwriting agreement in customary form with the underwriter or underwriters so selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders such Holders; provided, however, that no Holder (which underwriter or underwriters any of their assignees) shall be reasonably acceptable required to make any representations, warranties or indemnities except as they relate to such Holder’s ownership of shares and authority to enter into the underwriting agreement and to such Holder’s intended method of distribution, and the liability of such Holder shall be limited to an amount equal to the Company)net proceeds from the offering received by such Holder. Notwithstanding any other provision of this Section 2.2 or Section 2.43, if the underwriter advises the Company a Holder that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Holder shall so advise the Company and the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated as follows: (i) first, among holders of Registrable Securities that have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number aggregate amount of Registrable Securities held by all such Holders holders, until such holders have included in the underwriting all shares requested by such holders to be included, and (including the Initiating Holders); providedii) thereafter, howeveramong all other holders of Common Stock, if any, that have the right and have elected to participate in such underwritten offering, in proportion (as nearly as practicable) to the amount of shares of Common Stock owned by such holders. Without the consent of a majority in interest of the Holders of Registrable Securities participating in a registration referred to in Section 3(a), no securities other than Registrable Securities shall be covered by such registration if the inclusion of such other securities would result in a reduction of the number of shares of Registrable Securities to be covered by such registration or included in any underwriting or if, in the opinion of the managing underwriter, the inclusion of such underwriting and registration shall not be reduced unless all other securities would adversely impact the marketing of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationoffering.
(c) The Company shall not be required obligated to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected only two (2) registrations (and only if such registration would include Registrable Securities with an aggregate value of at least ten million dollars ($10,000,000), calculated using the closing price of the Company’s Common Shares on the Trading Market on the date preceding the date of the Purchaser Request) pursuant to Purchaser Requests under this Section 3 (an offering which is not consummated shall not be counted for this purpose).
(d) Notwithstanding the foregoing, the Company shall not be obligated to file a Registration Statement pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
3 (iiii) during the Lockup Period 90 day period commencing on the effective date of any other registration statement filed by the Company relating to the public offering of its Common Stock or securities convertible into Common Stock (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
on Forms S-4 or S-8 or any successor thereto) or (iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(vii) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman chief executive officer of the Board Company stating that that, in the good faith judgment of the Board of Directors of the Company, it the Board has determined to file a registration statement relating to the public offering of its Common Stock or securities convertible into Common Stock (other than on Forms S-4 or S-8 or any successor thereto) within 30 days of the Purchaser Request, during the period commencing on the date of such notice and ending upon the earliest of (i) effectiveness of such registration statement , (ii) a decision by the Company not to pursue effectiveness of such registration statement or (iii) 90 days after the filing of such registration statement; provided, however, that in the case of clause (ii) the Company may not utilize this right more than once in any twelve (12) month period; provided, further, that, for the avoidance of doubt, this clause (ii) shall be incremental to, and not in lieu of, the Company’s relief from its demand registration obligation under clause (i) above.
(e) Notwithstanding the foregoing, if the Company shall furnish to the Holders a certificate signed by the chief executive officer of the Company stating that, in the good faith judgment of the Board of Directors of the Company, maintaining a Registration Statement’s effectiveness would be seriously materially detrimental to the Company and its stockholders for such registration statement Registration Statement to be effected at remain effective by reason of a material pending or imminently prospective transaction or development and it is therefore essential to suspend such timeRegistration Statement’s effectiveness, in which event the Company shall have the right to defer suspend such filing effectiveness for a period of not more than ninety sixty (9060) days in aggregate after receipt of the request of the Initiating HoldersPurchaser Request; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ares Management Inc), Registration Rights Agreement (Wca Waste Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price to the public of at least not less than ten million dollars ($15,000,00010,000,000) (a “Qualified Public Offering”), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company in writing that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to one hundred eighty (180) days following the fourth (4th) anniversary effective date of the date of this Agreementregistration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effectiveeffective and provided, in the case of a public offering other than the Initial Offering, that the Initiating Holders were permitted to register such shares as requested to be registered pursuant to Section 2.3 hereof without reduction by the underwriter thereof;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, Statement within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Portola Pharmaceuticals Inc), Investor Rights Agreement (Portola Pharmaceuticals Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.22.1, if the Company shall receive a written request from the Initiating Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate resulting in net offering price proceeds of at least $15,000,00035,000,000, then the Company shallwill (x) promptly give written notice of the requested registration to all Holders and (y) as soon as practicable, file and use its reasonable best efforts to effect such registration under the Securities Act (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and appropriate compliance with the Securities Act) and to permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request received by the Company within thirty (30) days of the receipt thereof, give after such written notice from the Company is mailed or delivered. Such written request may specify all or a part of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all a Holder’s Registrable Securities that all Holders request to be registeredSecurities.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they then the Initiating Holders shall so advise the Company as a part of their written request made pursuant to this Section 2.2 2.1 or any request pursuant to Section 2.4 2.3, and the Company shall include such information in the written notice referred to in Section 2.2(a2.1(a) or Section 2.4(a2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All The Company shall (together with all Holders proposing to distribute their securities Registrable Securities through such underwriting shall underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 2.2 2.1 or Section 2.42.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating initiating Holders), or in such other proportions as mutually agreed to by such selling Holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.22.1:
(i) prior to the fourth (4th) anniversary earlier of June 30, 2014, or six months after the date of this AgreementInitial Offering;
(ii) after the Company has effected two (2) three registrations pursuant to this Section 2.2, 2.1 and either (A) such registrations have been declared or ordered effectiveeffective or (B) the request for such Registration Statements has been subsequently withdrawn by the Initiating Holders and the Initiating Holders has not paid the Registration Expenses of such withdrawn registration;
(iii) during the Lockup Period (as defined below)period starting with the date of filing of, other than pursuant and ending on the date 180 days following, the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such the registration statement for the Initial Offering to become effective;
(iv) if within thirty (30) 30 days of receipt of a written request from the Initiating Holders pursuant to Section 2.2(a2.1(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) 90 days;
(v) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 2.1, a certificate signed by the Chairman of the Board of Directors of the Company (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) 90 days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) 12 month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 2.3 below; or
(vii) in any particular jurisdiction in which if the Company would be required has, within the six month period preceding the date of such request, already effected a demand registration for the Holders pursuant to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until 2.1 and such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2ordered effective.
Appears in 2 contracts
Sources: Investor Rights Agreement (Sientra, Inc.), Investor Rights Agreement (Sientra, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive receives a written request from the Holders holders of at least fifty percent (50%) % of the Registrable Securities shares of Common Stock originally issued to Ford (the “"Initiating Ford Holders”") that the Company file a registration statement statement, on Form S-1, under the Securities Act covering the registration of the such number shares of Registrable Securities then outstanding having anticipated to have an aggregate offering price of at least not less than $15,000,0005,000,000, then the Company shall, within thirty (30) days of the receipt thereof, the Company shall give written notice of such request all holders of the shares of Common Stock originally issued to Ford (the "Ford Holders"), and subject to the limitations of this Section 2.2, the Company shall use its best efforts to effect, the registration under the Securities Act of all Registrable Securities that the Ford Holders request to be registered as soon as practicable.
(b) If the Initiating Ford Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 2.2 and with respect to requests made by the Initiating Ford Holders the Company shall include such information in the written notice referred to in Section 2.2(a). In such event, the right of any Ford Holder to include its Registrable Securities in such registration shall be conditioned upon such Ford Holder's participation in such underwriting and the inclusion of such Ford Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Ford Holders and such Ford Holder) to the extent provided herein. All Ford Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority of the Initiating Ford Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2, if the underwriter advises the Company that marketing forces require a limitation of the number of securities to be underwritten, then the Company shall advise all Ford Holders of Registrable Securities which would otherwise be underwritten pursuant hereto that the number of shares that may be included in the underwriting shall be allocated to the Ford Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities requested by each such Ford Holder, and the Ford Holders to be included in the registration (including the Initiating Ford Holders). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) Subject to the conditions of this Section 2.2, if the Company receives a written request from the Prior Holders of 40% of the Shares (or any Common Stock issued upon conversion thereof) (the "Initiating Holders") that the Company file a registration statement, on Form S-1, under the Securities Act covering the registration of at least 25% of the aggregate Registrable Securities held by the Prior Holders or such number of shares of Registrable Securities anticipated to have an aggregate offering price of not less than $10,000,000, then within thirty (30) days of the receipt thereof, the Company shall give written notice of such request to all Prior Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the Company shall use its best efforts to effect the registration under the Securities Act of all Registrable Securities that all the Prior Holders request to be registeredregistered as soon as practicable.
(bd) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant and with respect to Section 2.4 and requests made by the Initiating Holders the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(aSections 2.2(c), as applicable. In such event, the right of any Prior Holder to include its Registrable Securities in such registration shall be conditioned upon such Prior Holder’s 's participation in such underwriting and the inclusion of such Prior Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Prior Holder) to the extent provided herein. All Prior Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.42.2, if the underwriter advises the Company that marketing factors forces require a limitation of the number of securities to be underwritten (including Registrable Securities) underwritten, then the Company shall so advise all Prior Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and hereto that the number of shares that may be included in the underwriting shall be allocated to the Prior Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held requested by all each such Prior Holder, and the Prior Holders to be included in the registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(ce) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior with respect to the fourth (4th) anniversary of the date of this Agreement;
(iiSection 2.2(a) after the Company has effected two (2) registrations pursuant to this Section 2.22.2(a) and other than in accordance with the exceptions set forth in Section 2.6 such registrations have been declared or ordered effective or withdrawn by the Ford Holders, and with respect to Section 2.2(c) after the Company has effected two (2) registrations pursuant to Section 2.2(c), and such registrations have been declared or ordered effectiveeffective or withdrawn by the Prior Holders;
(ii) during the period starting with the date of filing of, and ending on the date ninety (90) days following the effective date of, any registration statement on Form S-1;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from the Initiating Ford Holders pursuant to Section 2.2(a) or the Initiating Holders pursuant to Section 2.2(a2.2(c), as the case may be, the Company gives notice to the Ford Holders or the Prior Holders of the Company’s 's intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, make its Initial Offering within ninety (90) days;
(viv) if (A) at the time the Company receives a request for registration in accordance with Sections 2.2(a) or (c) the Company shall then be engaged in any material transaction (such as, by way of example only, negotiating a merger, acquisition, joint-venture or introduction of a major new product) the disclosure of which in a Registration Statement, in the reasonable judgment of a majority of the Board of Directors, exercised in good faith, would be adverse to the Company's best interests, or (B) if the Company shall furnish to the Ford Holders requesting a registration statement pursuant to this Section 2.2 2.2(a) or the Prior Holders requesting a registration pursuant to Section 2.2(c), as the case may be, a certificate signed by the Chairman of the Board stating that in the good faith judgment a majority of the Board of Directors stating that in the Board of Director's reasonable judgment, exercised in good faith, the Company's earnings or the occurrence of some other material event are not at such time appropriate for disclosure, or, that it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, then, in which event either of such events, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Ford Holders or the Initiating Holders; provided that such right rights to delay a request shall be exercised by the Company in the aggregate not more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(viiv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change prior to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes earlier to occur of this Section 2.2(a) one year from the date hereof or (b) six months after the Closing of the Initial Offering.
Appears in 2 contracts
Sources: Stock Transfer Agreement (Vastera Inc), Investors' Rights Agreement (Vastera Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) holding a majority of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use its best efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all no other securities of party other than the Company and the Holders are first entirely excluded from included in the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the earlier of (A) the fourth (4th) anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to the Initial Offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, Statement within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Esperion Therapeutics, Inc.), Investor Rights Agreement (Esperion Therapeutics, Inc.)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty seventy-five percent (5075%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 2.2(a) or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) second anniversary of the date of this Agreement;
(ii) after the Company has effected two one (21) registrations registration pursuant to this Section 2.2, and such registrations have registration has been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Talis Biomedical Corp), Investor Rights Agreement (Talis Biomedical Corp)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if after the date hereof, the Company shall receive a written request from the Holders 1818 Fund, acting on behalf of at least fifty percent (50%) of the one or more 1818 Fund Securityholders holding Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of (i) at least twenty percent (20%) of the then outstanding Registrable Securities then outstanding held by the 1818 Fund Securityholders or (ii) Registrable Securities having an aggregate offering price to the public in excess of at least $15,000,0005,000,000, then the Company shall, shall (x) within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, Holders and (y) subject to the limitations of this Section 2.2, use its best efforts to effect, as expeditiously soon as reasonably possiblepracticable, but not later than sixty (60) days, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered, provided that no Registrable Securities (other than those held by 1818 Fund Securityholders) shall be included in any such registration.
(b) If the Initiating Holders intend 1818 Fund intends to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by 1818 Fund and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders 1818 Fund (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.42.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders1818 Fund); providedprovided that, howeverin no event, that the number of shares of shall any Registrable Securities to (other than those held by 1818 Fund Securityholders) be included in such underwriting and any registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registrationpursuant to Section 2.2(a). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.22.2(a) for 1818 Fund, on behalf of the 1818 Fund Securityholders, and in each case such registrations have been declared or ordered effective; provided, however, that a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected: (A) unless a registration statement with respect thereto has become effective and remained effective in compliance with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement until the earlier of (x) such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement and (y) 180 days after the effective date of such registration statement; (B) if after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Holders of Registrable Securities participating in such registration and has not thereafter become effective; or (C) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Holders of Registrable Securities participating in such registration;
(iiiii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below), other than pursuant 180) days following the effective date of the registration statement pertaining to a Special Registration Statementthe Initial Offering; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;; or
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(viii) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders1818 Fund; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (1818 Fund Lp Brown Brothers Harriman Co Long T Michael Et Al), Investor Rights Agreement (Psychiatric Solutions Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.26.2, if the Company shall receive at any time after the date hereof, a written request from the Initiating Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price to the public in excess of at least $15,000,0002,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.26.2(b), effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 6.2 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a6.2(a), as applicable. In such event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.46.2, if the underwriter advises the Company in writing that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders participating in the related registration (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required obligated to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected more than two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance6.2.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Sources: Stock Purchase Agreement (Endocardial Solutions Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If the Company shall receive receives at any time after the date that is 180 days after the effective date of the Qualified Offering, a written request from the Holders of at least fifty percent (50%) a majority of the Registrable Securities (the “Initiating Holders”) then outstanding that the Company file a Registration Statement on Form S-1 or any similar long-form registration statement ("Long-Form Registrations") under the Securities Act covering the registration of the such Holder's or Holders' Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000(the "Initiating Holders"), then the Company shallwill, within thirty (30) ten business days of the receipt thereof, give written notice of such request to all HoldersHolders and will, and subject to the limitations set forth below and of this Section 2.2subsection 2(b), effecteffect as soon as practicable, as expeditiously as reasonably possibleand in any event shall use its reasonable best efforts to effect within sixty (60) days of the receipt of such request, the registration a Registration Statement under the Securities Act of all Registrable Securities that all then outstanding which the Holders request to be registeredregistered within fifteen (15) days of the mailing of such notice by the Company. Notwithstanding the foregoing, the Company's obligation to effect the requested registration shall be conditioned upon the anticipated aggregate offering price of Registrable Securities equaling or exceeding $10,000,000.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall will so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2 and the Company shall will include such information in the written notice referred to in Section 2.2(asubsection 2(a). The underwriter (the "Underwriter") or Section 2.4(awill be selected by a majority in interest of the selling stockholders (the "Selling Holders"), as applicablesubject to approval by the Company, not to be unreasonably withheld. In such event, the right of any Holder to include its such Holder's Registrable Securities in such registration shall will be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Selling Holders and such Holder) to the extent provided hereinin this Agreement. All Holders proposing to distribute their securities through such underwriting shall will (together with the Company as provided in subsection 5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)Underwriter. Notwithstanding any other provision of this Section 2.2 or Section 2.42, if the underwriter Underwriter advises the Selling Holders and the Company in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company shall will so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant heretoto this Agreement, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered included in the underwriting will be allocated pro rata among the Holders and the holders ("Series A Holders") of the Company's Series A Convertible Preferred Stock, par value $.01 per share (the "Series A Preferred Stock"), who have exercised piggyback registration rights to participate in such offering on Form S-3 the basis of the number or dollar amount of securities requested by such Holders and Series A Holders to be included in such offering.
(c) Notwithstanding the foregoing, (i) the Company shall not be obligated to register any Registrable Securities pursuant to a request made this Section 2 if such Registrable Securities may be, and the Company causes them to be, registered pursuant to Section 2.4 below; or
3, and (viiii) in any particular jurisdiction in which the Company would shall be required obligated to qualify effect only three registrations pursuant to do business or this Section 2; provided, however, that the Company shall be deemed to execute fulfill its obligations pursuant to this Section 2 only (x) if the number of shares of Registrable Securities included in the Registration Statement has not been reduced by more than 25% pursuant to subsection 2(b) (unless such Registrable Securities are not so included due to the fault of the Holder), and (y) when such registration has become effective (unless such registration has not become effective due to the fault of the Holder) and remained effective in compliance with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement for a general consent period of not less than 180 days, (unless such Registrable Securities are not disposed of due to service the fault of process the Holder); and, provided further, that the Company will pay all registration expenses in effecting connection with any registration initiated at the request of a Holder to the extent provided below in Section 7 (unless such registration, qualification or complianceregistration is not consummated due to the fault of the Holder).
(d) Notwithstanding the foregoing, the Company may postpone for up to three (3) months the filing or the effectiveness of a Registration Statement for any registration if (i) the Company reasonably believes that such registration would have a material adverse effect on any proposal or plan by the Company or any of its Subsidiaries (as defined in the Purchase Agreement) to engage in any acquisition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other significant transaction pending at the time a request is made for a registration, (ii) such registration would require the Company to disclose contract negotiations pending at the time a request is made for a registration or other information, the disclosure of which would, in the reasonable belief of the Company, have a material adverse effect on the Company or (iii) the holders of the Series A registration Preferred Stock have previously requested a registration. Such postponement may be effected by delivery of written notice to the Holders within fifteen (15) business days of the Company's receipt of a request for a registration. Failure to so notify the Holders of such a postponement within said 15 business day period shall constitute a waiver of the Company's right under this paragraph 2(d). During such period, the Company shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not entitled to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (file any other than as a result of a material adverse change Registration Statement relating to the Company)'s securities pursuant to any other outstanding registration rights agreement or for any other secondary offering, other than such demand registration previously requested by the Series A Holders; and provided further, that the Company shall not have the right to so defer such action more than once in any three hundred sixty-five (365) day period. Upon the expiration of the deferral period the Company shall be required to file a Registration Statement covering the Registrable Securities requested to be registered. Notwithstanding the foregoing, in which case such withdrawn registration statement the event that the Company has deferred the filing of a Registration Statement pursuant to clause (iii) and a Registration Statement requested by the holders of the Series A Preferred Stock becomes effective, the deferral period shall be counted as “effected” for purposes a period of up to 120 days from the date of the request by the holders of the Series A Preferred Stock plus a period of 180 days after the effectiveness of such registration or the closing date of any underwritten offering.
(e) The Company shall have no obligation to any Holder under this Section 2.22 with respect to the Registrable Securities then outstanding of such Holder if the Company has obtained an opinion of counsel reasonably satisfactory to such Holder, in form and substance satisfactory to such Holder, to the effect that all such Registrable Securities then outstanding of such Holder may be immediately sold to the public without registration thereof, whether pursuant to Rule 144 or otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Digital Entertainment Network Inc)
Demand Registration. REGISTRATION RIGHTS AGREEMENT 22
(a) Subject to Commencing immediately upon the conditions date of this Section 2.2Closing (as defined in the Placement Agreement), if the Company shall receive any Requesting Holders may make a written request from to the Holders of at least fifty percent Company (50%) of the Registrable Securities (the “Initiating Holders”specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act covering (or a similar document pursuant to any other statute then in effect corresponding to the 1933 ▇▇▇) ▇▇vering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Stock. In such event, then the Company shallshall (x) within ten (10) days thereafter notify in writing all other Holders of Registrable Stock of such request, and (y) use its best efforts to cause to be registered under the 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within thirty forty-five (3045) days of after the receipt thereofCompany has given such notice, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to requested be registered.
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2.(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.2(a2.(a) or Section 2.4(a), as applicableabove. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 2. All Holders proposing to distribute their securities Registrable Stock through such underwriting underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriters. Such underwriter or underwriters shall be reasonably acceptable selected by a majority in interest of the Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the Company). obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.2 or Section 2.42 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) then underwritten, the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held Stock requested to be included in such registration by all such Holders (including each Holder at the Initiating Holders)time of filing the registration statement; provided, however, that in the event of such limitation of the number of shares of Registrable Securities Stock to be included in such underwriting and registration shall not be reduced unless all other securities of underwritten, the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting Holders shall be withdrawn from the registration.
(c) The Company shall not be required entitled to effect a an additional demand registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary 2. If any Holder of Registrable Stock disapproves of the date terms of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant underwriting, such Holder may elect to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a withdraw by written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.managing underwriter and
Appears in 1 contract
Demand Registration. (a) Subject to SECTION 2.1. Commencing on the conditions first anniversary of this Section 2.2the date hereof, if the Company shall receive a written request in the manner provided in Section 16.2 hereof from one or more Holders (collectively, the Holders of at least fifty percent (50%) of the Registrable Securities (the “"Initiating Holders”") that the Company file a registration statement Registration Statement under the Securities Act covering the registration of any or all of such Holder's Registrable Securities, whether issued or issuable pursuant to the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000, LLC Agreement) then the Company shall, shall (a) within thirty (30) 10 days of the receipt thereof, give written notice notice, in the manner provided in Section 16.2 hereof, of such request to all HoldersHolders of outstanding Registrable Securities known to the Company, and (b) subject to the limitations of contained in this Section 2.2Article II, effectfile, as expeditiously soon as reasonably possiblepracticable and in any event within 30 days after the beginning of such fiscal quarter, the Registration Statement to effect registration under the Securities Act of covering all Registrable Securities that all Holders for which the Company receives a request from the Holder thereof in the manner provided in Section 16.2 hereof, within 10 days of the mailing of such notice by the Company. The Company, however, shall not be required to file a Registration Statement pursuant to this Article II unless the aggregate number of Registrable Securities requested to be registeredregistered represents a total of 50,000 Common Shares.
(b) SECTION 2.2. If the an Initiating Holders intend Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2.1 hereof and the Company shall include such information in the written notice to the Holders referred to in Section 2.2(a) or Section 2.4(a), as applicable2.1. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities sell Registrable Securities through such underwriting (together with the Company as provided in Section 5.1(g) of this Agreement and any other holder of shares of Common Shares permitted to participate in such registration pursuant to this Section 2.2) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders Initiating Holder(s) (provided the same are underwriters of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be recognized nationals standing reasonably acceptable to the Company) upon the terms and conditions agreed upon between the Company and such underwriter(s). Notwithstanding any other provision of this Section 2.2 or Section 2.4Article II, if the underwriter advises underwriter(s) advise the Company Initiating Holder(s) in writing that marketing or other factors require a limitation of the number of securities Registrable Securities to be underwritten (including Registrable Securities) underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Initiating Holder(s), in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all which each Holder requested be included in such Holders (including the Initiating Holders); provided, however, that registration. If the number of shares of Registrable Securities to be underwritten has not been so limited, the Company may include shares of Common Shares for its own account (or for the account of other shareholders) in such registration if the underwriter(s) so agree and to the extent that, in the opinion of such underwriter(s), the inclusion of such additional shares will not adversely effect the offering of the Registrable Securities included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) SECTION 2.3. The Company shall not be required obligated to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary total of the date of this Agreement;
(ii) after the Company has effected more than two (2) registrations in any twelve-month period pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or complianceArticle II hereof.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.'
Appears in 1 contract
Sources: Registration Rights Agreement (Entertainment Properties Trust)
Demand Registration. (ai) Subject to On and after the conditions of this Section 2.2date that is six months after the Closing Date, if the Company shall receive a written request from the Holders of at least fifty percent (50%) % of the Registrable Securities (the “"Initiating Holders”") may request in a written notice that the Company Borrower file a ------------------ registration statement under the Securities Act (or a similar document pursuant to any other statute then in effect corresponding to the Securities Act) covering the registration of any or all Registrable Securities held by such Initiating Holders in the manner specified in the notice; provided, however, that there must be included in such registration at least 50% of the Registrable Securities then outstanding having an aggregate offering price Securities. Following receipt of at least $15,000,000any notice under this Section 9.02(a), then the Company shall, Borrower shall (X) within thirty (30) 20 days of the receipt thereof, give written notice notify all other Holders of such request in writing and (Y) use its best efforts to all Holders, and subject cause to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration be registered under the Securities Act of all Registrable Securities that all the Initiating Holders request to and such other Holders have, within ten (10) days after the Borrower has given such notice, requested be registered.registered in accordance with the manner of disposition specified in such notice by the Initiating Holders
(bii) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company Borrower shall include such information in the written notice referred to in clause (X) of Section 2.2(a9.02(a)(i) or Section 2.4(a), as applicableabove. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the CompanyBorrower). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company provided that marketing factors require a limitation (X) all of the number representations and warranties by, and the other agreements on the part of, the Borrower to and for the benefit of securities such underwriters shall also be made to be underwritten (including Registrable Securities) then and for the Company shall so advise all benefit of such Holders of Registrable Securities that would otherwise Securities, (Y) any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be underwritten pursuant heretoconditions precedent to the obligations of such Holders of Registrable Securities, and the number of shares that may be included in the underwriting (iii) no Holder shall be allocated required to make any representations or warranties to or agreements with the Holders Borrower or the underwriters other than representations, warranties or agreements regarding such holder, the Registrable Securities of such Registrable Securities on a pro rata basis based on Holder and such holder's intended method of distribution and any other representations required by law or reasonably required by the number underwriter or the SEC in order to have such registration statement declared effective. If any holder of Registrable Securities held disapproves of the terms of the underwriting, such holder may elect to withdraw all its Registrable Securities by all such Holders (including written notice to the Borrower, the managing underwriter and the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration . The securities so withdrawn shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall also be withdrawn from the registration.
(ciii) The Company Borrower shall not be required to effect a registration pursuant to this Section 2.2:9.02
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(va) if the Company Borrower shall furnish to such Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the CompanyBorrower, it would be seriously detrimental to the Company Borrower and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company Borrower shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company Borrower not more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty forty percent (5040%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of at least a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,00010,000,000 (a “Qualified Public Offering”)), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the fifth anniversary of the date of this AgreementAgreement or (B) of the expiration of the restrictions on transfer set forth in Section 2.11 following the Initial Offering;
(ii) after the Company has effected two three (23) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing, and ending on the date one hundred eighty (180) days following the effective date, of the registration statement pertaining to the Initial Offering (or such longer period as defined below), other than may be determined pursuant to a Special Registration StatementSection 2.11 hereof); provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, its Initial Offering within ninety (90) days; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective in that time;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Sources: Investor Rights Agreement (NGM Biopharmaceuticals Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from (x) beginning on the earlier of (i) five (5) years after the date of this Agreement and (ii) six (6) months after the Company’s Initial Offering, the Holders of at least fifty sixty-five percent (5065%) of the Registrable Securities then outstanding (the “Preferred Initiating Holders”) or (y) beginning six (6) months after the Company’s Initial Offering, Carlyle or any of its Affiliates holding Registrable Securities (the “Carlyle Initiating Holders” and, together with the Preferred Initiating Holders, the “Initiating Holders”) ), in each case, that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having for an underwritten public offering with an anticipated aggregate offering price in excess of at least $15,000,00050,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered.
(b) If the Initiating All Holders intend proposing to distribute their securities pursuant to a registration under this Section 2.2 shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by (i) the Holders of a majority of the Registrable Securities covered held by their request by means of an underwriting, they shall so advise all Preferred Initiating Holders or (ii) the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a)Carlyle Initiating Holders, as applicableapplicable (which underwriter or underwriters, in each case, shall be reasonably acceptable to the Company). In such event, the The right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through herein (unless otherwise mutually agreed by such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by Holder and (x) the Holders of a majority of the Registrable Securities held by all Preferred Initiating Holders or (which y) the Carlyle Initiating Holders, as applicable, with respect to such participation and inclusion). If a person who has requested inclusion in such registration as provided in Section 2.2(a) does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or underwriters shall be reasonably acceptable to the Company)applicable Initiating Holders. Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and (A) in the case of a registration requested by the Preferred Initiating Holders, the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders)) or in such other proportion as shall be agreed by all holders of Registrable Securities participating in the underwriting and (B) in the case of a registration requested by the Carlyle Initiating Holders, the number of shares that may be included in the underwriting shall be allocated first to the Carlyle Initiating Holders and then to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (excluding the Carlyle Initiating Holders) or in such other proportion as shall be agreed by the Carlyle Initiating Holders and all other holders of Registrable Securities participating in the underwriting; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company not included in the request by the Initiating Holders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. For purposes of the provision in this Section 2.2(b) concerning apportionment as it relates to demand registrations under Section 2.2 or Underwritten Shelf Takedowns under Section 2.4, for any Holder that is a partnership, limited liability company, or corporation, the partners, retired partners, members, retired members, stockholders, and Affiliates of such Holder, or the estates and immediate family members of any such partners, retired partners, members, and retired members 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 number of Registrable Securities owned by all Persons included in such “Holder”, as defined in this sentence.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected (x) two (2) registrations pursuant to this Section 2.22.2 at the request of the Preferred Initiating Holders and (y) two (2) registrations pursuant to this Section 2.2 at the request of the Carlyle Initiating Holders, and such registrations have been declared or ordered effectiveeffective and pursuant to which securities have been sold (other than if the Holders elected not to sell securities pursuant to such registration);
(iiiii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of a registration statement pertaining to a public offering subject to Section 2.3, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iviii) if within thirty fifteen (3015) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offeringoffering subject to Section 2.3, other than pursuant to a Special Registration Statement, within ninety sixty (9060) daysdays of the Company’s giving such notice; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period; and provided, further that the Company shall not register any securities for the account of itself or any other stockholder during such one hundred twenty (120) day period (other than pursuant to a Special Registration Statement);
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 or that have been included on a registration statement on Form S-3, including pursuant to a request made pursuant to Section 2.4 below; or
(viivi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.22.1, if the Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of at least twenty percent (20%) of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,0005,000,000), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.22.1, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 2.1 or any request pursuant to Section 2.4 2.3 and the Company shall include such information in the written notice referred to in Section 2.2(a2.1(a) or Section 2.4(a2.3(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 2.2 2.1 or Section 2.42.3, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company or of those stockholders permitted to participate in the offering pursuant to the terms of a Prior Registration Rights Agreement are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) In the event of dissolution of Forstmann Little or any of its affiliates then holding Registrable Securities, or in the event that the Company shall receive an opinion of counsel to Forstmann Little or any of its affiliates then holding Registrable Securities, in form and substance reasonably satisfactory to the Company, that the continued ownership of Registrable Securities by Forstmann Little or any of its affiliates then holding Registrable Securities would more likely than not: (i) result in a material violation of any statute, rule, regulation, license, permit or similar approval or order of a governmental authority that is applicable to Forstmann Little or any of its affiliates then holding Registrable Securities; or (ii) subject Forstmann Little or any of its affiliates then holding Registrable Securities to any penalty material to any such entity under law or of any governmental authority, in any such case that cannot be cured without a material cost to such entity; or (iii) impair the "venture capital operating company" status of Forstmann Little or any of its affiliates then holding such Registrable Securities, then the Company shall, upon the written request of such entity, file a registration statement under the Securities Act covering all, but not less than all, of the Registrable Securities then held by such entity and effect the registration of such Registrable Securities.
(d) The Company shall not be required to effect a registration pursuant to this Section 2.22.1:
(i) prior to the fourth date that is one hundred eighty (4th180) anniversary days following the effective date of the date of this Agreementregistration statement pertaining to the Initial Offering;
(ii) after the Company has effected two one (21) registrations registration pursuant to this Section 2.22.1, and such registrations have registration has been declared or ordered effective;effective and kept effective by the Company as required by Section 2.5(a) of this Agreement unless the registration was made pursuant to Section 2.1(c) and provided, that a demand made pursuant to Section 2.1(c) hereof shall not qualify as a registration for the purposes of this Section 2(d)(ii).
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.1, a certificate signed by the Chairman of the Board stating that in the good faith and reasonable judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;; or
(viiv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 2.3 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Demand Registration. (a) Subject to If at any time after the conditions earlier of (i) two (2) years after the date of this Agreement or (ii) six (6) months after the effective date of the Initial Public Offering (as such term is defined in Section 2.22 of this Agreement), if the Company shall receive a written request from the Holders of Investors holding at least fifty percent (50%) 30% of the Registrable Securities (the “Initiating Holders”) then outstanding that the Company file a registration statement (other than on Form S-3 pursuant to Section 1.4 of this Agreement) under the Securities Act covering the registration of all or part of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Securities, then the Company shall, within thirty ten (3010) days of the receipt thereofof such request, give written notice of such request to all Holdersholders of Registrable Securities and shall, and subject to the limitations of this Section 2.21.3(b), effect, use its best efforts to effect as expeditiously soon as reasonably possible, practicable the registration under the Securities Act of all Registrable Securities that all Holders which the Investors request to be registeredregistered in a written request to be given within twenty (20) days of the giving of such notice by the Company.
(b) If The Investors initiating the registration request under this Section 1.3 (the "Initiating Holders intend to Investors") must distribute the Registrable Securities covered by their request by means of an underwritinga public offering underwritten by a recognized national or regional underwriter, they which underwriter shall so advise be reasonably acceptable to the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicableCompany. In such event, the The right of any Holder Investor to include its Registrable Securities in such registration shall be conditioned upon such Holder’s Investor's participation in such underwriting and the inclusion of such Holder’s Investor's Registrable Securities in the underwriting to the extent provided herein. All Holders Investors proposing to distribute their securities Registrable Securities through such underwriting shall (together with the Company as provided in Section 1.7(h)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)Investors. Notwithstanding any other provision of this Section 2.2 or Section 2.41.3, if the underwriter advises the Company Initiating Investors in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Investors shall so advise all Holders Investors who are holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all holders thereof, including the Initiating Investors, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting owned by each Investor and requested to be registered in such registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required is obligated to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected only two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
1.3. A request for registration under this Section 1.3 cannot be made within six (iii6) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders months of the Company’s intention to file effective date of a registration statement for a public offering, offering of the Company's securities (other than pursuant to a Special Registration Statement, within ninety (90) days;Exempt Registrations).
(vd) Notwithstanding the foregoing, if the Company shall furnish to Holders the Investors requesting a registration statement pursuant to this Section 2.2 1.3 a certificate signed by the Chairman President of the Board Company, stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating HoldersInvestors; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice once in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(de) A registration The Company shall not be counted as “effected” for purposes of obligated to take any action to effect any registration pursuant to this Section 2.2 until such time as 1.3, if, within ten (10) days of the applicable registration statement has been declared effective by receipt of a request from Initiating Investors the SEC, or unless Company gives the Initiating Holders withdraw their request for Investors written notice that it has begun substantive discussions with an underwriter with respect to a public offering of securities that would give rise to registration rights under Section 1.5. The Company must promptly notify the Investors of any abandonment of such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2offering.
Appears in 1 contract
Demand Registration. (a) Subject to Commencing six (6) months after the conditions date of this Section 2.2Closing (as defined in the Investor Agreement), if the Company shall receive but in any event, on or after December 31, 1997, any Requesting Holders may make a written request from to the Holders of at least fifty percent Company (50%) of the Registrable Securities (the “Initiating Holders”specifying that it is being made pursuant to this Section 2) that the Company file a registration statement under the Securities 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the ▇▇▇▇ ▇▇▇) covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Stock. In such event, then the Company shallshall (x) within ten (10) days thereafter notify in writing all other Holders of Registrable Stock of such request, and (y) use commercially reasonable efforts to cause to be registered under the 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, within thirty forty-five (3045) days of after the receipt thereofCompany has given such notice, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to requested be registered.
(b) If the Initiating Requesting Holders intend to distribute the Registrable Securities Stock covered by their request by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 2 above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2.2(a) or Section 2.4(a), as applicable2 above. In such event, the Holder's right of any Holder to include its Registrable Securities Stock in such registration shall be conditioned upon such Holder’s 's participation in such underwriting underwritten offering and the inclusion of such Holder’s 's Registrable Securities Stock in the underwriting underwritten offering to the extent provided hereinin this Section 0. All Holders proposing to distribute their securities Registrable Stock through such underwriting underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriters. Such underwriter or underwriters shall be reasonably acceptable selected by a majority in interest of the Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the Company). obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2.2 or Section 2.42 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Company Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) then underwritten, the Company Requesting Holders shall so advise all Holders of Registrable Securities Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in the underwriting such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the Holders of such Registrable Securities on a pro rata basis based on the number amount of Registrable Securities held Stock requested to be included in such registration by all such Holders (including each Holder at the Initiating Holders)time of filing the registration statement; provided, however, that in the event of such limitation of the number of shares of Registrable Securities Stock to be included in such underwriting and underwritten, the Holders shall be entitled to one (1) additional demand registration shall not be reduced unless all other securities pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the Company are first entirely excluded from terms of the underwriting underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and registrationthe Requesting Holders. Any Registrable Securities excluded or The securities so withdrawn from such underwriting shall also be withdrawn from the registration.
(cd) The Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2.2:
2 during the period starting with the fourteenth (i14th) prior to the fourth (4th) anniversary of day immediately preceding the date of this Agreement;
(ii) after an anticipated filing by the Company has effected two (2) registrations pursuant to this Section 2.2of, and such registrations have been declared or ordered effective;
ending on a date ninety (iii90) during days following the Lockup Period (as defined below)effective date of, other than pursuant a registration statement pertaining to a Special Registration Statementpublic offering of securities for the account of the Company; provided provided, that the Company makes reasonable shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective;; and provided further, that the Company's estimate of the date of filing such registration statement shall be made in good faith.
(ive) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant The Company shall be obligated to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement effect and pay for a public offering, other than pursuant to a Special Registration Statement, within ninety total of only one (901) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company2, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made unless increased pursuant to Section 2.4 below2 hereof; or
(vii) in any particular jurisdiction in which the Company would be required provided, that a registration requested pursuant to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration this Section 2 shall not be counted as “effected” deemed to have been effected for purposes of this Section 2.2 until such time as the applicable registration statement 2, unless (i) it has been declared effective by the SECCommission, or unless the Initiating Holders withdraw their request for such (ii) if it is a shelf registration, elect not to pay it has remained effective for the registration expenses thereforperiod set forth in Section 3, and forfeit their right to one demand registration statement (iii) the offering of Registrable Stock pursuant to Subsection 2.5 such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than any such action prompted by any act or omission of the Holders), and (iv) no limitation of the number of shares of Registrable Stock to be underwritten has been required pursuant to Section 2 hereof.
(f) The Company shall use commercially reasonable efforts to have such Shelf Registration Statement declared effective as soon as reasonably practicable after such filing, and to keep such Shelf Registration Statement continuously effective until two (2) years following the date on which such Shelf Registration Statement becomes effective under the Securities Act; provided, however, that the Company may voluntarily suspend the effectiveness of such Shelf Registration Statement for a result of a material adverse change limited time, which in no event shall be longer than one hundred twenty (120) days, if the Company has been advised by counsel or underwriters to the Company that the offering of the shares of Common Stock pursuant to the Shelf Registration Statement would adversely affect, or would be improper in view of (or improper without disclosure in a prospectus), a proposed financing, a reorganization, recapitalization, merger, consolidation, or similar transaction involving the Company), in which case such withdrawn registration statement the Company shall be counted required to keep such Shelf Registration Statement effective for an additional period of time beyond two (2) years following the date of the effectiveness thereof equal to the number of days the effectiveness thereof is suspended pursuant to this proviso. Upon the occurrence of any event that would cause the Shelf Registration Statement to contain a material misstatement or omission or not to be effective and usable during the period that such Shelf Registration Statement is required to be effective and usable, the Company shall promptly file an amendment to the Shelf Registration Statement and use its best efforts to cause such amendment to be declared effective as “effected” soon as practicable thereafter. The Company will bear all costs and expenses related to the Shelf Registration Statement other than the expenses incurred by the Purchasers for purposes underwriters' commissions and discounts or legal fees incurred by the Purchasers. The Purchasers shall furnish to the Company such information regarding their holdings and the proposed manner of this Section 2.2distribution thereof as the Company may reasonably request and as shall be required in connection with the Shelf Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Applied Voice Recognition Inc /De/)
Demand Registration. (a) Subject to the conditions of this Section 2.21.2, if the Company shall receive at any time after the earlier of (i) three (3) years after the date of this Agreement and (ii) six (6) months after the effective date of the Initial Offering, a written request from the Holders of at least in excess of fifty percent (50%) of the Registrable Securities then outstanding (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having with an aggregate anticipated offering price (net of underwriting discounts and commissions) of at least $15,000,00010,000,000, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.21.2, use commercially reasonable efforts to effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registeredregistered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 1.2 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a1.2(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.41.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated on a pro rata basis to the Holders of such Registrable Securities on and other shareholders seeking to register the resale of their shares under a pro rata basis written agreement with the Company based on the number of Registrable Securities and such other shares held by all such Holders holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.21.2:
(i) prior in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the fourth (4th) anniversary of Company is already subject to service in such jurisdiction and except as may be required under the date of this Agreement;Act; or
(ii) after the Company has effected two one (21) registrations registration pursuant to this Section 2.21.2, and such registrations have registration has been declared or ordered effective;; or
(iii) during the Lockup Period period starting with the date sixty (as defined below)60) days prior to the Company’s good faith estimate of the date of the filing of, other than pursuant to and ending on a Special Registration Statement; date one hundred eighty (180) days following the effective date of, a Company-initiated registration, provided that the Company makes reasonable is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective;; or
(iv) if within thirty (30) days of receipt of a written request from the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 1.2, a certificate signed by the Chairman of the Board Company’s Chief Executive Officer or President stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; , provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month 12)-month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If the Company shall receive receive, at any time after two years from the effective date of this Agreement, a written request from the Holders of at least fifty percent (50%) % of the Registrable Securities (the “Initiating Holders”) then outstanding that the Company file a registration statement under the Securities Act covering the registration of all of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000held by such Holders, then the Company shall, within thirty (30) days of the receipt thereof, shall promptly give written notice of such request to all Holders. As soon as practicable thereafter, and subject to the limitations of and restrictions contained in this Section 2.2, effect, as expeditiously as reasonably possible2, the Company shall use its reasonable best efforts to effect the registration under the Securities Act of all Registrable Securities that all which the Holders request to be registered.
, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request given within twenty (b20) days after receipt of such notice from the Company. Notwithstanding the above, the Company shall not be obligated to take any action to effect such registration within ninety (90) days prior to the good faith estimated date of filing of a registration statement for public offering of securities of the Company for its own account or within ninety (90) days following the effective date of such registration. If the Initiating requesting Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 Subsection 2(a) and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(aSubsection 2(a), as applicable. In such event, the right of any Holder to include his or its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Holders of Company and reasonably acceptable to a majority in interest of such Holders according to the Registrable number of Registerable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)such Holders. Notwithstanding any other provision of this Section 2.2 or Section 2.42, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a include in the registration pursuant to this Section 2.2:
(i) prior the securities of any Holder unless the Holder accepts and agrees to the fourth (4th) anniversary terms proposed by the underwriters selected by the Company. If, in the opinion of the date underwriters and based on marketing factors identified by such underwriters, the proposed timing of this Agreement;
(ii) after the offering would jeopardize the success of the offering, then the Company has effected two (2) registrations pursuant shall have a one-time right to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during defer the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders filing of the Company’s intention to file a registration statement for a public offering, other period of not more than pursuant to a Special Registration Statement, within ninety (90) days;
(v) days after receipt of the request of the Holders. If any Holder disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Company, the underwriter and the other Holders. The securities so withdrawn shall also be withdrawn from registration. If the underwriter has not limited the number of Registrable Securities to be underwritten, the Company and its officers or directors may include their securities for their own account in such registration, if the underwriter so agrees. In the case that no underwriter is involved in the proposed distribution by the Holders, if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 2 a certificate signed by the Chairman President of the Board Company stating that that, in the good faith judgment of the Board board of Directors directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right . The Company is obligated to delay a request shall be exercised by effect only one (1) demand registration pursuant to this Section 2. "Piggy-Back" Registration. If the Company shall determine at any time to register any of its Common Stock or securities which are convertible into or exercisable for Common Stock (other than a registration relating solely to employee benefit plans, or a registration relating solely to an SEC Rule 145 transaction, or a registration on any registration form which does not more than twice permit secondary sales or does not include substantially the same information as would be required to be included in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares a registration statement covering the sale of Registrable Securities that may be immediately registered on Form S-3 pursuant Securities), the Company will: (i) promptly give to the Holders written notice thereof (which shall include a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction list of the jurisdictions in which the Company would intends to attempt to qualify such securities under the applicable blue sky or other state securities laws), and (ii) use its best efforts to cause to be included in such registration and in any underwriting involved therein all the Registrable Securities specified in a written request or requests made by the Holders within twenty (20) days after receipt of such written notice from the Company; provided, however, that the number of Registrable Securities so registered may be limited by the underwriter's cut-back provision set forth in Subsection 3(c) below. 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 part of the written notice given pursuant to Subsection 3(a). In such event, the right of each Holder to register pursuant to Section 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. Any 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 for underwriting by the Company. Notwithstanding any other provision of this Section 3, the Company shall not be required to qualify include in the registration the securities of any Holder unless the Holder accepts and agrees to the terms proposed by the underwriters selected by the Company, and then only in such quantity as will not, in the opinion of the underwriters and based on marketing factors identified by such underwriters, jeopardize the success of the offering by the Company. If the total number of Registrable Securities which the Holders request to be included in any offering exceeds the number of Shares which the underwriters reasonably believe is compatible with the success of the offering, the Company shall only be required to include in the offering so many of the Shares as the underwriters believe will not jeopardize the success of the offering. In such instance, the Registrable Securities of the Holders to be included in the registration shall be allocated among all the Holders thereof in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders at the time of filing the registration statement. If any Holder disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Company, the underwriters and the other Holders. The securities so withdrawn shall also be withdrawn from registration. The number of Shares proposed to be registered by the Company and the price therefore as proposed by the Company shall have priority in the above process and shall not be reduced until after all Registrable Securities of the Holders have been excluded from the proposed registration. Obligations of the Company. Whenever required under Sections 2 or 3 to use its reasonable best efforts to effect the registration of any Registrable Securities, the Company shall do business the following as expeditiously as possible: Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become and remain effective; provided, however, that, except as set forth in Subsection 4(b) below, the Company shall in no event be obligated to cause such registration statement to remain effective for more than one hundred twenty (120) days. If the registration is effected pursuant to Rule 415 under the Securities Act, which rule allows for the registration of securities to be offered on a continuous or delayed basis, the Company shall promptly (i) take all actions that may be necessary or advisable to execute a general consent to service maintain the effectiveness of process in effecting such registration, qualification including but not limited to complying with the undertakings of the registrant in Item 512(a) of Regulation S-K under the Securities Act, (ii) at Purchaser's request, file with the SEC a supplement or compliance.
supplements to the previously filed prospectus as required by Rule 424 under the Securities Act, and (diii) A registration shall not be counted as “effected” for purposes maintain the effectiveness of this Section 2.2 until such time as the applicable registration statement has been declared effective by for at least one hundred twenty (120) days following the SEC, or unless filing of any such supplements. Prepare and file with the Initiating SEC such amendments and supplements to such registration statements and the prospectus used in connection therewith to comply with the requirements of the Securities Act. Furnish to the Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result number of copies of a material adverse change to the Companyprospectus (including a preliminary prospectus), in which case conformity with the requirements of the Securities Act, and such withdrawn other documents as such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities to be sold under the registration statement statement. Use its reasonable best efforts to register and qualify the securities covered by such registration statements under the securities laws of such states of the United States as shall be counted as “effected” reasonably appropriate for purposes the distribution of this Section 2.2the securities covered by such registration statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Zevex International Inc)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) two-thirds of the Registrable Securities then outstanding (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of a majority of the Registrable Securities then outstanding having an (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $15,000,000 at a per share price reflecting a pre-money valuation of at least the Company of $15,000,00060,000,000 (a "Qualified Public Offering")), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, use its best efforts to effect, as expeditiously soon as reasonably possiblepracticable, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) the third anniversary of the date of this AgreementAgreement or (B) one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s 's intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, make its Initial Offering within ninety (90) days;
(viv) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice once in any twelve (12) month period;; or
(viv) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Sources: Investor Rights Agreement (Interactive Network Inc /Ca)
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If the Company shall receive receives at any time after the date that is 12 months after Closing, a written request from the Holders of a majority of the Registrable Securities then outstanding (the "Initiating Holders") that the Company file a registration statement under the Act covering the registration of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000outstanding, then the Company shall, :
(i) within thirty (30) 10 days of the receipt thereof, give written notice of such request to all Holders; and
(ii) use all reasonable efforts to effect as soon as practicable, and in any event within 180 days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered, within 30 days of the mailing of such notice by the Company in accordance with Section 2.4. subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registeredsubsection 1.2(b).
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 subsection 1.2(a), and the Company shall include such information in the written notice referred to in Section 2.2(a) subsection 1.2(a). The underwriter will be selected by the Initiating Holders and shall be an underwriter of regional or Section 2.4(a), as applicablenational standing reasonably acceptable to the Company. In such event, the right of any Holder to include its Registrable Securities in such the registration 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 (unless otherwise mutually agreed by a majority in interest of the extent provided hereinInitiating Holders and such Holder). All Holders proposing to distribute their securities through such the underwriting shall (together with the Company as provided in subsection 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 2.2 or Section 2.41.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant heretoto this subsection, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by among all such Holders (Holders, including the Initiating Holders), in proportion (as nearly as practicable) to the amount of Registrable Securities of the Company owned by each Holder; provided, however, that the number of shares of Registrable Securities to be included in such the underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationunderwriting.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to Notwithstanding the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2foregoing, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish furnishes to Initiating Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman Chief Executive Officer of the Board Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such a registration statement to be effected at such timefiled and it is therefore essential to defer the filing of the registration statement, in which event the Company shall have the right to defer such taking action with respect to the filing for a period of not more than ninety (90) 120 days after receipt of the request of the Initiating Holders; provided provided, however, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice once in any twelve (12) twelve-month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration In addition, the Company shall not be counted as “effected” for purposes of obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.2 until 1.2: (i) after the Company has effected two registrations pursuant to this Section 1.2 and such time as the applicable registration statement has registrations have been declared or ordered effective; and
(ii) within twelve months after the effective by date of the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the first registration expenses therefor, and forfeit their right to one demand registration statement made pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.21.2.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.2, if If the Company shall receive at any time a written request from the Holders of at least fifty thirty-five percent (5035%) of the Registrable Securities then outstanding (the “Initiating Holders”) "INITIATING HOLDERS"), requesting that the Company file a registration statement under the Securities Act covering the registration of a portion of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000outstanding, then the Company shall, :
(i) within thirty ten (3010) days of the receipt thereof, give written notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any event within sixty (60) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered, subject to the limitations of this subsection 1.2(b), within fifteen (15) days of the mailing of such notice by the Company in accordance with Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Holders request to be registered2.5.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 subsection 1.2(a) and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(asubsection 1.2(a), as applicable. The underwriter will be selected by the Company and shall be reasonably acceptable to a majority of the Initiating Holders. In such event, the right of any Holder or other holder of securities of the Company to include its Registrable Securities securities in such registration shall be conditioned upon such Holder’s 's or holders' participation in such underwriting and the inclusion of such Holder’s Registrable Securities 's or holders' securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder or holder) to the extent provided herein. All Holders and other holders of securities of the Company proposing to distribute their securities through such underwriting shall (together with the Company as provided in subsection 1.5(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 2.2 or Section 2.4section 1.2, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that and other holders of registration rights which would otherwise be underwritten pursuant hereto, and the number of shares of securities that may be included in the underwriting on behalf of each Holder or other holder shall be allocated: (i) first, to the Registrable Securities requested to be included in such registration by the Holders of Registrable Securities; (ii) second, to shares of Common Stock held by other holders requested to be included in such registration, provided that such amount shall be allocated to the Holders of among such Registrable Securities other holders on a pro rata basis based on upon their respective percentage of ownership of the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the total number of shares of Registrable Securities Common Stock then outstanding and (iii) third, to shares of Common Stock to be offered by the Company in such registration. For purposes of allocation securities to be included in any offering, for any selling stockholder which is a partnership or corporation, the partners, retired partners and stockholders of such underwriting holder (and registration shall not be reduced unless all other securities in the case of a partnership, any affiliated partnerships), or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting foregoing persons shall be withdrawn from deemed to be a single "selling stockholder," and any pro-rata reduction with respect to such "selling stockholder" shall be based upon the registrationaggregate amount of shares carrying registration rights owned by all entities and individuals included in such "selling stockholder," as defined in this sentence.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to Notwithstanding the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2foregoing, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 1.2, a certificate signed by the Chairman Chief Executive Officer of the Board Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided PROVIDED, HOWEVER, that such right to delay a request shall be exercised by the Company may not utilize this right more than twice once in any twelve (12) twelve-month period;.
(vid) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected one (1) registration pursuant to this Section 1.2 and such registration has been declared or ordered effective (or two (2) such registrations if the Company is not S-3 eligible and the Articles Approval (each as defined in the Purchase Agreement) is not obtained prior to the expiration of the underwriters lock-up in the Company's Public Offering; and
(ii) If the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 1.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Demand Registration. (ai) Subject to the conditions of this Section 2.22(a), if the Company shall receive a written request from the Holders of at least fifty five percent (505%) of the Registrable Securities (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price of at least $15,000,000Act, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.22(a), use its best efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all the Holders request in writing to be registered.
(bii) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 2(a) or any request pursuant to Section 2.4 2(c) and the Company shall include such information in the written notice referred to in Section 2.2(a2(a)(i) or Section 2.4(a2(c)(i), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the CompanyInitiating Holders). Notwithstanding any other provision of this Section 2.2 Sections 2(a) or Section 2.42(c), if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) ), then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, provided that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company proposed to be sold by its stockholders are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(ciii) The Company shall not be required to effect a registration pursuant to this Section 2.2:2(a):
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(iiA) after the Company has effected two (2) registrations pursuant to this Section 2.22(a), and such registrations have been declared or ordered effective;
(iii) during the Lockup Period (as defined below), other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(vB) if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2 2(a), a certificate signed by the Chairman of the Board stating that that, in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company for periods aggregating not more than twice ninety (90) days in any twelve (12) month period;; or
(viC) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 2(c) below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Sources: Investor Rights Agreement (Penn Treaty American Corp)
Demand Registration. (a) Subject to If, at any time after six calendar months after the conditions date of this Section 2.2Agreement, if the Company Borrower shall receive at any time a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) Lender, that the Company Borrower file a registration statement under the Securities Act covering the registration of the Registrable Securities then outstanding having an aggregate offering price price, net of underwriting discounts and commissions, of at least $15,000,0001,000,000, then the Company shallBorrower shall effect as soon as practicable, and in any event within thirty (30) 120 days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possiblerequest, the registration under the Securities Act of all Registrable Securities that all Holders request Lender requests to be registered, subject to the limitations of Section 2(b), within 20 days of the mailing of such notice by Borrower in accordance with Section 9(d) of the Agreement.
(b) If the Holders initiating the registration request hereunder ("Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company Borrower as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 section 2(a) and the Company Borrower shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a2(a), as applicable. The underwriter will be selected by Borrower and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include its his Registrable Securities in such registration shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with Borrower as provided in Section 4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company)underwriting. Notwithstanding any other provision of this Section 2.2 or Section 2.42, if the underwriter advises the Company Initiating Holders in writing that marketing factors require a limitation of the number of securities shares to be underwritten (including Registrable Securities) underwritten, then the Company Initiating Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders electing to include shares in the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (offering, including the Initiating Holders); provided, however, that in proportion (as nearly as practicable) to the number of shares amount of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registrationBorrower owned by each Holder.
(c) The Company Borrower shall not be required obligated to effect a effect, or to take any action to effect, any registration pursuant to this Section 2.22:
(i) prior to the fourth (4th) anniversary of the date of this Agreement;
(ii) after the Company After Borrower has effected two (2) registrations pursuant to this Section 2.2, 2 and such registrations have been declared or ordered effective;
(iiiii) during During the Lockup Period (as defined below)period starting with the date 60 days prior to Borrower's good faith estimate of the date of filing of, other than pursuant and ending on a date 180 days after the effective date of, a registration subject to a Special Registration StatementSection 3; provided that the Company makes reasonable Borrower is actively employing in good faith all reasonable efforts to cause such registration statement to become be effective;; or
(iviii) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), If the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;
(vi) if Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 12 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Demand Registration. (a) Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of at least fifty percent (50%) % of the Registrable Securities (the “"Initiating Holders”") that the Company file a registration statement under the Securities Act covering the registration of at least 50% of the Registrable Securities then outstanding having an or a lesser percentage if the anticipated aggregate offering price price, net of at least underwriting discounts and commissions, would exceed $15,000,0007,500,000 (a "Qualified Public Offering"), then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.2 or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation Hold▇▇'▇ ▇articipation 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 enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Holders of a majority in interest of the Registrable Securities held by all Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities that which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other securities of the Company are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.2:
(i) prior to the fourth earlier of (4thA) anniversary March 31, 2004 or (b) one hundred eighty (180) days following the effective date of the date of this Agreementregistration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;
(iii) during the Lockup Period period starting with the date of filing of, and ending on the date one hundred eighty (as defined below)180) days following the effective date of the registration statement pertaining a public offering, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s 's intention to file a registration statement for make a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.2 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than twice in any twelve (12) month period;; or
(vi) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(d) A registration shall not be counted as “effected” for purposes of this Section 2.2 until such time as the applicable registration statement has been declared effective by the SEC, or unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration statement pursuant to Subsection 2.5 (other than as a result of a material adverse change to the Company), in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.2.
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Gene Logic Inc)