Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering: (i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and (ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01. (b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request. (c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b). (d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court. (e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size: (i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and (ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement). (f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Sol-Gel Technologies Ltd.), Registration Rights Agreement (Sol-Gel Technologies Ltd.)
Demand Registration. (a) If at any time If, following completion the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Initial Public Offering, subject Company other than pursuant to the terms Merger Agreement, and (ii) ninety (90) days after the termination of any “lock-up” agreement entered into with one the Merger Agreement or more underwriters (unless waived by such underwriter(s))the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall receive a request (each such request shall be referred requested by the Investor to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for of Registrable Shares, then, upon the first Public Offering of written request, delivered to the Company after (which request shall specify the completion number of the Initial Public Offering (the “Follow-On Offering”Registrable Shares proposed to be included in such registration), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as shall, subject to Section 2(c) below, promptly as practicable following the date of receipt by the Company of use its best efforts to effect such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) Act of the Registrable Securities Shares which the Company has been so requested to be registered, provided thatregister.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b2(a) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period except in which all Registrable Securities of accordance with the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Sizefollowing provisions:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effectuse its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to take which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any action registration statement for a period of up to effect90 days after the date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2.01 during 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period that is thirty (30) of 180 days before the Company’s good faith estimate of from the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiverecession.
Appears in 3 contracts
Sources: Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Ply Gem Industries Inc)
Demand Registration. (a) Form S-1 Demand. If at any time following completion one hundred eighty (180) days after the effective date of the Initial Public Offering, subject to registration statement for the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty thirty-five percent (3035%) of the Registrable Securities then outstanding, outstanding that the Company effect the file a Form S-1 registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), statement with respect to at least twenty thirty-five percent (2035%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if in which the anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof10 million, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (i) within ten (10) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders and thereupon shall (iii) as soon as practicable, and in any event within forty five sixty (4560) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a Form S-1 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (including 20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Sections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any securities time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least ten percent (10%) of the Registrable Securities then outstanding that the Company proposes file a Form S-3 registration statement with respect to be included that are not outstanding Registrable Securities) exceeds the largest number Securities of shares that can be sold without such Holders having an adverse effect on such offeringanticipated aggregate offering price, including the price net of Selling Expenses, of at which such shares can be sold (the “Maximum Offering Size”)least $5 million, then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) firstwithin ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within twenty (including for 20) days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this Agreement)Sections 2.1(c) and 2.3.
(fc) The Notwithstanding the foregoing obligations, if the Company may postpone effecting furnishes to Holders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2.1 a certificate signed by the Company’s chief executive officer stating that (i) effecting in the registration good faith judgment of the Board it would be materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective, 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 sixty (ii60) effecting days after the registration would require request of the premature disclosure of material information Initiating Holders is given; provided, however, that the Company has a bona fide business purpose may not invoke this right more than twice in any twelve (12) month period (which may be for consecutive sixty (60) day periods aggregating to preserve as confidential. In addition, one hundred twenty (120) days); and provided further that the Company shall not register any securities or instruments for its own account or that of any other stockholder during such period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 Section 2.1(a) or (iii) 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 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (A) 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveeffective or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, 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 Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 3 contracts
Sources: Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp)
Demand Registration. The Company, upon written demand (a) If at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand RegistrationNotice”) from a Shareholder or group of Shareholders the Holder(s) of at least 51% of the Warrants and/or the Warrant Shares (the requesting Shareholder(s) shall be referred to herein as the “Requesting ShareholderMajority Holders”), holding at least thirty percent (30%) of the Registrable Securities then outstandingagrees to register, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offeringon one occasion, all or any portion of the Requesting Shareholder’s Warrant Shares underlying the Warrant (the “Registrable Securities”). On such occasion, the Company will file a registration statement with the Commission covering the Registrable Securities andwithin sixty (60) days after receipt of a Demand Notice and use its reasonable best efforts to have the registration statement declared effective promptly thereafter, in each casesubject to compliance with review by the Commission; provided, specifying the intended method of disposition thereofhowever, then that the Company shall as promptly as practicable following the date of receipt by not be required to comply with a Demand Notice if the Company has filed a registration statement with respect to which the Holder is entitled to piggyback registration rights pursuant to Section 5 b) hereof and either: (i) the Holder has elected to participate in the offering covered by such registration statement or (ii) if such registration statement relates to an underwritten primary offering of securities of the Company, until the offering covered by such request registration statement has been withdrawn or until thirty (30) days after such offering is consummated. The demand for registration may be made at any time beginning on the Initial Exercise Date and expiring on the fifth anniversary of the Effective Date. The Company covenants and agrees to give written notice of such its receipt of any Demand Registration at least fifteen Notice by any Holder(s) to all other registered Holders of the Purchase Warrants and/or the Registrable Securities within ten (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit receipt of any other Persons not party to this Agreement)such Demand Notice.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Placement Agency Agreement (Biovie Inc.), Underwriting Agreement (Biovie Inc.), Underwriting Agreement (Biovie Inc.)
Demand Registration. (a) If Upon written notice to the Company from the Investor at any time following completion of during the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders Effective Period (the "Demand Request") requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities 1933 Act (i) for the first Public Offering of any or all of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (held by the Investor or any lesser percentage if the anticipated aggregate offering priceother Holder, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying which notice shall specify the intended method or methods of disposition thereofof such Registrable Securities, then the Company shall prepare and, as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as is practicable, and in any event within forty five (45) 60 days after the date the Demand Registration is given by the Requesting Shareholdersuch request, file with the Commission a registration statement with respect to such Registrable Securities and thereafter use its best efforts to cause such registration statement to be declared effective under the Securities Act, and (ii) use its commercially reasonable efforts 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case coveringcontrary:
(i) subject the Investor may exercise its rights to the restrictions set forth request registration in Sections 2.01(e), all respect of Registrable Securities for which held by the Requesting Shareholder has requested registration Investor or any other Holder under this Section 2.01, 2.02(a) on not more than four occasions (each such registration being referred to herein as a "Demand Registration"); and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) one Demand Registrations pursuant to this Section 2.01Registration in any calendar year.
(b) Promptly after the expiration Notwithstanding any other provision of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior this Agreement to the effective date of the registration statement relating to such registrationcontrary, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of requested by the fault of the Company (in which case the Company shall be obligated Investor pursuant to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of this Section 2.01(b).
(d) A Demand Registration 2.02 shall not be deemed to have occurred unless been effected, and, therefore, not requested and the registration statement relating thereto rights of the Investor shall be deemed not to have been exercised for purposes of Section 2.02(a), (i) if the Investor has not received notice (confirmed by the Commission) that such Demand Registration has become effective under the Securities 1933 Act and or (ii) has remained effective for a period of at least 180 days (or if such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred ifRegistration, after such registration statement becomes effectiveit became effective under the 1933 Act, such registration statement is interfered with by was not maintained effective under the 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency Governmental Entity solely on the account of a material misrepresentation or court.
omission of the Investor) for at least 120 days (e) If the Requesting Shareholder intends to distribute or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto (but in no event before the expiration of the 90-day period referred to in Section 4(3) of the 1933 Act and Rule 174 promulgated thereunder, if applicable)). The time periods referred to in the preceding sentence shall be extended, with respect to any Demand Registration, by their request by means the number of an underwriting, they shall so advise the Company as part of their request pursuant days in any Section 2.04 Period and/or Section 2.06(e) Period applicable to section 2.01, and the Company shall include such information in their notice to the other ShareholdersDemand Registration. If a Demand Request is made by the Investor during the Effective Period but the related Demand Registration involves an underwritten Public Offering shall be deemed not to have been exercised under the circumstances set forth in this Section 2.02(b), then the Investor shall be deemed not to have used one of its rights to request a Demand Registration under this Section 2.02 and shall continue to have such right.
(c) The Company shall have the same rights to piggy-back any shares of Class A Common Stock on a Demand Registration initiated pursuant to this Section 2.02 as a Holder of Registrable Securities would have in a Piggy-back Registration, and other stockholders of the Company may exercise any piggy-back registration rights granted to them by the Company with respect to such Demand Registration; provided however, that notwithstanding anything to the contrary in this Agreement, if the lead or managing underwriter advises the Company and the Requesting Shareholder that, referred to in its view, Section 2.03 determines that marketing factors require a limitation on the number of shares of Class A Common Stock to be offered and sold pursuant to such Demand Registration, there shall be included in the offering only that number of shares of Class A Common Stock that such lead or managing underwriter reasonably and in good faith believes will not jeopardize the success of the offering (including a material reduction in the price per share of the Registrable Securities requested to be sold). In such event, the shares of Class A Common Stock to be included in such registration (including any securities that the Company proposes to Demand Registration shall be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
apportioned (i) first, all to any Registrable Securities requested that the Holders propose to be included sell in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering SizeDemand Registration, pro rata among such Shareholders Holders on the basis of the relative number of Registrable Securities held requested to be included therein by each such ShareholderHolder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, to any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information Class A Common Stock that the Company has a bona fide business purpose proposes to preserve as confidential. In additionsell in such Demand Registration and (iii) third, among any shares of Class A Common Stock that other stockholders of the Company shall not be obligated propose to effectsell in such Demand Registration, or to take any action to effect, any registration pursuant to Section 2.01 during pro rata among such stockholders on the period that is thirty (30) days before the Company’s good faith estimate basis of the date relative number of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts shares requested to cause be included therein by each such registration statement to become effectivestockholder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Echostar Communications Corp), Investment Agreement (Echostar Communications Corp), Registration Rights Agreement (Echostar Communications Corp)
Demand Registration. (a) If at 1.2.1. At any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of upon the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%IPO) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering priceCompany and thereafter, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall but not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to times during the term of this Section 2.01.
Agreement (b) Promptly after in the expiration of the seven-Business Day period referred to in Section 2.01(a)(iiaggregate, for all Holders), the Company will notify all Registering Shareholders any Holder or group of the identities of the other Registering Shareholders and the number of shares Holders of Registrable Securities requested to be included therein. At any time prior to the effective date which hold an aggregate of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause at least 12.5% (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (vtwelve and one half percent) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunderCompany then issued (the “Initiating Holders”), may request in writing (a “Demand”) that the Company uses its best efforts to register such Holders’ Registrable Securities, or any part thereof, for trading on any recognized European or United States securities exchange or quotation system (“Exchange”) in accordance with the provisions of this Section 1.2, provided however that a Demand Registration for registration in the United States or on any European exchange may only be effected after six (6) months from the consummation of the Company’s initial public offering in the United States or on such European exchange and provided further that the aggregate anticipated offering price of such Registrable Securities equals at least US$4,000,000. A Demand, which has not culminated in the registration of the requested Registrable Securities, shall not be deemed counted as a Demand for the purposes of this section, unless the reason for such lack of culmination was due to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement an action of the SEC or other governmental agency or courtInitiating Holders.
(e) If 1.2.2. As soon as practicable after receipt of the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”)Demand, the Company shall promptly give written notice of the proposed registration, qualification or compliance to all other Holders, and shall file a registration statement covering such shares and shall take all actions under its power and control to include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, qualification or compliance all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or Holders who explicitly expressed their wish to participate in such other proportion registration within twenty (20) days after receipt of the Company’s notice. Thereupon the Company shall take all reasonable actions under its power and control to effect such registration as shall mutually be agreed to by required and as would permit and facilitate the sale and distribution of all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by portion of the Company (including for the benefit Holders’ Registrable Securities as are specified in such request together with all such portion of Registrable Securities of any other Persons not party to this Agreement)Holders joining in such request as aforesaid.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors Rights Agreement (Evogene Ltd.), Investors Rights Agreement (Evogene Ltd.), Investors Rights Agreement (Evogene Ltd.)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject Demand Registration Other Than on Form F-3 or Form S-3.
(i) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 50% of the then outstanding Class A Registrable Securities (the “lock-up” agreement entered into with one or more underwriters (unless waived by Class A Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such underwriter(s))a request, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”x) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) promptly give written notice of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand proposed Registration to all the other Shareholders, if any, Holders and thereupon shall (iy) as soon as practicable, and use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any event Registrable Securities of any Holder who requests in writing to join such Registration within forty five fifteen (4515) days after the date the Demand Registration is given by the Requesting ShareholderCompany’s delivery of written notice, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by Registered and/or qualified for sale and distribution in such jurisdiction as the Requesting Shareholder that any other Shareholders Class A Initiating Holder may request. The Company shall be obligated to effect no more than two (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register 2) Registrations pursuant to this Section 2.012.1(a)(i) that have been declared and ordered effective, by request received by provided that if the Company within seven Business Days after such Shareholders receive the Company’s notice sale of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so sought to be registeredincluded pursuant to this Section 2.1(a)(i) is not consummated for any reason other than due to the action or inaction of the Class A Initiating Holder in such Registration, provided that, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(i). The Company shall not be obligated to take any action to effect a Demand any Registration pursuant to this Section 2.1(a)(i) unless the aggregate proceeds expected to be received from the sale offering that is the subject of the Registration exceeds US$10,000,000.
(ii) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series A Registrable Securities (the “Series A Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities requested specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be included Registered and/or qualified for sale and distribution in such Demand Registration equals or exceeds $10,000,000jurisdiction as the Series A Initiating Holder may request. In no event The Company shall the Company be required obligated to effect no more than two (2) Demand Registrations pursuant to this Section 2.01.
(b2.1(a)(ii) Promptly after that have been declared and ordered effective, provided that if the expiration sale of all of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested sought to be included therein. At pursuant to this Section 2.1(a)(ii) is not consummated for any time prior reason other than due to the effective date action or inaction of the registration statement relating to Series A Initiating Holder including the Registrable Securities in such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless constitute one of the registration statement relating thereto Registration rights granted pursuant to this Section 2.1(a)(ii).
(iiii) has become effective under Subject to the Securities Act and terms of this Agreement, at any time or from time to time following the date that is six (ii6) has remained effective for months after the closing of a period Qualified IPO, any Holder(s) of at least 180 days 30% of the then outstanding Series B Registrable Securities (or the “Series B Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such shorter period a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in which all the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Registering Shareholders included Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such registration jurisdiction as the Series B Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(iii) that have actually been sold thereunder)declared and ordered effective, provided that a Demand if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(iii) is not consummated for any reason other than due to the action or inaction of the Series B Initiating Holder including the Registrable Securities in such Registration, such Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement constitute one of the SEC or other governmental agency or courtRegistration rights granted pursuant to this Section 2.1(a)(iii).
(eiv) If Subject to the Requesting Shareholder intends terms of this Agreement, at any time or from time to distribute time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series C Registrable Securities covered by their (the “Series C Initiating Holder”) may request by means of an underwriting, they shall so advise the Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities writing that the Company proposes to be included that are not Registrable Securities) exceeds effect a Registration on the largest number stock exchange for the Qualified IPO. Upon receipt of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”)a request, the Company shall include (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such registrationjurisdiction as the Series C Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(iv) that have been declared and ordered effective, in provided that if the priority listed below, up to sale of all of the Maximum Offering Size:
(i) first, all Registrable Securities requested sought to be included pursuant to this Section 2.1(a)(iv) is not consummated for any reason other than due to the action or inaction of the Series C Initiating Holder including the Registrable Securities in such registration by all Registering Shareholders (allocatedRegistration, if necessary for the offering such Registration shall not be deemed to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis constitute one of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party Registration rights granted pursuant to this AgreementSection 2.1(a)(iv).
(fv) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 50% of the then outstanding Series D Registrable Securities (the “Series D Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series D Initiating Holder may request. The Company may postpone effecting a registration shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.01 on two occasions during 2.1(a)(v) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(v) is not consummated for any period reason other than due to the action or inaction of twelve consecutive months for a reasonable time specified the Series D Initiating Holder including the Registrable Securities in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may such Registration, such Registration shall not be extended or reneweddeemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(v), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the The Company shall not be obligated to effecttake any action to effect any Registration pursuant to this Section 2.1(a)(v) unless the aggregate proceeds from the offering that is the subject of the Registration exceeds US$10,000,000.
(vi) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series E Registrable Securities (the “Series E Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series E Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(vi) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(vi) is not consummated for any reason other than due to the action or inaction of the Series E Initiating Holder in such Registration, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(vi).
(b) Registration on Form F-3 or Form S-3. Subject to the terms of this Agreement, if the Company qualifies for registration on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the U.S.), any Holder may request the Company to file, in any jurisdiction in which the Company has had a registered underwritten public offering, a Registration Statement on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the U.S.), including without limitation any registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or a delayed basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission. Upon receipt of such a request, the Company shall (i) promptly give written notice of the proposed Registration to all the other Holders and (ii) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and qualified for sale and distribution in such jurisdiction. The Company’s obligation to effect Registrations pursuant to this Section 2.1(b) is unlimited. The Company shall not be obligated to take any action to effect, effect any registration Registration pursuant to this Section 2.01 during 2.1(b) unless the period aggregate proceeds from the offering that is thirty (30) days before the Company’s good faith estimate subject of the date of filing of, and ending on a date that is ninety Registration exceeds US$5,000,000. The Company shall be obligated to effect no more than two (902) days after the effective date of, a Company-initiated registration such Registrations pursuant to this Section 2.1(b) in any twelve (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective12) month period.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (eHi Car Services LTD), Investors’ Rights Agreement (eHi Car Services LTD), Investors’ Rights Agreement (eHi Car Services LTD)
Demand Registration. (ai) If at any time following completion of the Initial Public OfferingOffering End Date, and subject to the terms conditions of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))this Section 2, the Company shall receive a written request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), Purchasers holding at least thirty fifty percent (3050%) of the Registrable Securities (the “Initiating Purchasers”) that the Company file a registration statement under the 1933 Act or effect a registration for a public offering in the United States and/or in a jurisdiction or jurisdictions of Canada, covering the registration of at least twenty-five percent (25%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any a lesser percentage percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,0005,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholdersshall, if any, and thereupon shall (i) as soon as practicablepromptly, and in any event within forty five twenty (4520) days after of the date the Demand Registration is given by the Requesting Shareholderreceipt thereof, file a registration statement under the Securities Actgive written notice of such request to all Purchasers, and (ii) subject to the limitations of this Section 2, use its commercially reasonable best efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholderpracticable, the effectiveness registration under the 1933 Act or the Applicable Canadian Securities Laws of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01Purchasers request to be registered. Such Registration Statement also shall cover, and
(ii) subject to the restrictions set forth extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416) or the Applicable Canadian Securities Laws, such indeterminate number of additional shares of Common Shares resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. The Registration Statement (and each amendment or supplement thereto) shall be provided in Sections 2.01(e), all other Registrable Securities accordance with Section 3(c) to the Purchasers and their counsel prior to its filing. The Company must effect an unlimited number of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register registrations pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered2(a), provided thathowever, that the Company shall not be obligated to effect (A) a Demand Registration unless the aggregate proceeds expected to be received from registration covering the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds for an aggregate public offering price of less than $10,000,000. In no event shall the Company be required to effect 5,000,000, (B) more than two (2) Demand Registrations pursuant to this Section 2.01such registrations in any 12-month period, or (C) any registration at a time when it is keeping three (3) such registrations effective.
(bA) Promptly after For so long as the expiration Company is eligible to use a Form F-3 or Form S-3 registration statement, as applicable, or any successor form, and upon the written request of the seven-Business Day period referred to in Section 2.01(a)(ii), Initiating Purchasers: (1) the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, Registration Statement prepared by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) filed on Form F-3 or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for Form S-3, as applicable, and shall pay cover the resale of all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities maximum portion of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to would be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed permitted to be registered by the Company (including SEC for the benefit of any other Persons not party an offering to this Agreement).
(f) The Company may postpone effecting be made on a registration continuous basis pursuant to this Section 2.01 on two occasions during any period Rule 415, (2) the Prospectus shall contain (except if otherwise directed by a majority in interest of twelve consecutive months for the Initiating Purchasers or otherwise required pursuant to written comments received from the SEC upon a reasonable time specified review of such Registration Statement) the “Plan of Distribution” section in substantially the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months form attached hereto as Exhibit A, and (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i3) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take file any action to effect, any registration prospectus supplement (as required by Rule 430B) pursuant to Section 2.01 during Rule 424(b)(7) under the period that is thirty (30) days before Securities Act as may be required in order for such Registration Statement to be used by each Purchaser for the Company’s good faith estimate resale 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveits Registrable Securities.
Appears in 3 contracts
Sources: Amendment and Waiver (Polymet Mining Corp), Registration Rights Agreement (Polymet Mining Corp), Registration Rights Agreement (Polymet Mining Corp)
Demand Registration. (a) If at any time following completion after one hundred eighty (180) days after the effective date of the Initial Public Offering, subject to registration statement for the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) a majority of the Registrable Securities then outstanding, Then Outstanding that the Company effect the file a Form S-1 registration under the Securities Act (i) for the first Public Offering statement with respect to all or any portion of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s their Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof15,000,000, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (i) within ten (10) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if anyInitiating Holders, and thereupon shall (iii) as soon as practicable, and in any event within forty five sixty (4560) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a Form S-1 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (including 20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.3.
(b) If at any securities time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least twenty percent (20%) of the Registrable Securities Then Outstanding that the Company proposes file a Form S-3 registration statement with respect to be included that are not outstanding Registrable Securities) exceeds the largest number Securities of shares that can be sold without such Holders having an adverse effect on such offeringanticipated aggregate offering price, including the price net of Selling Expenses, of at which such shares can be sold (the “Maximum Offering Size”)least $1,000,000, then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) firstwithin ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within twenty (including for 20) days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this Agreement)Section 2.1(c) and Section 2.3.
(fc) The Notwithstanding the foregoing obligations, if the Company may postpone effecting furnishes to Holders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2.1 a certificate signed by the Company’s chief executive officer stating that (i) effecting in the registration good faith judgment of the Company’s Board of Directors it would be materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore necessary to defer the filing of such registration statement, 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 sixty (ii60) effecting days after the registration would require request of the premature disclosure of material information Initiating Holders is given; provided, however, that the Company has a bona fide business purpose may not invoke this right more than 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 (90)-day period other than pursuant to preserve as confidential. In addition, the any Excluded Registrations.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration or file any registration statement pursuant to Section 2.01 2.1(a) (i) during the period commencing on the date that that is ninety (90) 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 Section 2.1(a); or (iii) 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 2.1(b).
(e) The Company shall not be obligated to effect, or to take any action to effect, any registration or file any registration statement pursuant to Section 2.1(b) (i) during the period commencing on the date 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12)-month period immediately preceding the date of such request; or (iii) if the Company has effected a registration pursuant to Section 2.1(b) within the six (6)-month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(e) until such time as the applicable registration statement has been declared effective by the SEC, 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 Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(e) except as provided in Section 2.6.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Tempus AI, Inc.), Investors’ Rights Agreement (Tempus Labs, Inc.), Investors’ Rights Agreement (Tempus Labs, Inc.)
Demand Registration. (a) If at any time following completion after the earlier of (i) three (3) years after the date of this Agreement or (ii) one hundred eighty (180) days after the effective date of the Initial Public Offering, subject to registration statement for the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, Required Holders that the Company effect the file a Form S-1 registration under the Securities Act (i) for the first Public Offering statement with respect to at least 60% of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any a lesser percentage percent if the anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed $10,000,00015,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (i) within ten (10) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders; and thereupon shall (iii) as soon as practicable, and in any event within forty five sixty (4560) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a Form S-1 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all additional Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within twenty (including for 20) days after the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this AgreementSection 2.1(b).
(fb) The Notwithstanding the foregoing obligations, if the Company may postpone effecting furnishes to Holders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors (the “Board of Directors”) it would be 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 otherwise would be required to remain effective, because such action would (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition; 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 sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than 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 sixty (60) day period other than pursuant to a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar 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 Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.01 2.1 (i) during the period that is thirty sixty (3060) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety one hundred eighty (90180) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms)registration, provided 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 one (1) registration pursuant to Section 2.1; or (iii) 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 2.3. A registration shall not be counted as “effected” for purposes of this Section 2.1 until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, do not pay the registration expenses therefor and, as a result, forfeit their right to one demand registration statement pursuant to Section 2.7, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Allena Pharmaceuticals, Inc.), Investors’ Rights Agreement (Allena Pharmaceuticals, Inc.)
Demand Registration. (aA) If at Subject to subsection (C) hereof, if the Company receives a written request from the Purchaser that the Company effect any time following completion registration with respect to all or a part of the Initial Public Offeringshares of Common Stock issuable upon conversion of the Shares that are held by the Purchaser and/or its controlled Affiliates (such shares, subject to the terms extent that the registration of any such number of Shares is permitted pursuant to then applicable rules, regulations and staff guidance of the SEC) are hereinafter referred to as “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)Registrable Securities”), the Company shall receive shall:
(1) As soon as practicable, but in no event later than ninety (90) days following the receipt of such request, prepare and file with the SEC a request registration statement on Form S-3 (each such request shall be referred to herein as a the “Demand RegistrationRegistration Statement”) relating to the resale of Registrable Securities by the Purchaser from a Shareholder time to time through the automated quotation system of NASDAQ or group the facilities of Shareholders (any national securities exchange or trading system on which the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) Common Stock of the Registrable Securities Company is then outstandingtraded or in privately negotiated transactions;
(2) Subject to receipt of necessary information from the Purchaser, that use commercially reasonable efforts to cause the SEC to notify the Company effect of its willingness to declare the registration under Registration Statement effective within ninety (90) days after the Securities Act Registration Statement is filed by the Company, and notify the Purchaser of such notification from the SEC within three (3) Business Days of receipt;
(3) Promptly prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep each Registration Statement effective until the earlier of (i) for 120 days following the date on which the registration first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000)became effective, or (ii) after such time as all Registrable Securities held by the completion Purchaser have been sold pursuant to a registration statement (the “Registration Period”);
(4) So long as the Registration Statement is effective covering the resale of Registrable Securities owned by the Follow-On OfferingPurchaser, furnish to the Purchaser with respect to the Common Stock registered under the Registration Statement such reasonable number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any portion Registrable Securities by the Purchaser;
(5) File documents required of the Requesting Shareholder’s Company for normal blue sky clearance in states specified in writing by the Purchaser; provided, however, that the company shall not be required to qualify to do business in any jurisdiction in which it is not now so qualified;
(6) Bear all expenses in connection with the procedures in subsection (A) of this Section 6.1 and the registration of Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration pursuant to the other ShareholdersRegistration Statement; and
(7) Notwithstanding the foregoing, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations registration pursuant to this Section 2.01.
6.1 during the period starting with the date sixty (b60) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time days prior to the Company’s estimated date of filing of, and ending on a date sixty (60) days following the effective date of, a registration statement pertaining to an underwritten public offering of the Company’s securities, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement relating to such registration, become effective and that the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out Company’s estimate of the fault date of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with filing such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act is made in good faith, and (ii) has remained effective if the Company shall furnish to the Purchaser a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future, then the Company’s obligation to use its best efforts to file a registration statement shall be deferred for a period of at least 180 days not to exceed one hundred twenty (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court120) days.
(e) 8) If the Requesting Shareholder Purchaser intends to distribute the Registrable Securities covered by their request its demand by means of an underwriting, they it shall so advise the Company as part of their request its demand made pursuant to section 2.01this Section 6.1. The Company shall, together with the Purchaser, enter into an underwriting agreement in customary form with the underwriter or underwriters selected by the Purchaser and the Company shall include such information in their notice reasonably satisfactory to the other ShareholdersCompany. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, has not limited the number of shares Registrable Securities to be underwritten, the Company may include securities for its own account (or for the account of other stockholders) in such registration if the underwriter so agrees and if the number of Registrable Securities requested to be that would otherwise have been included in such registration and underwriting will not thereby be limited.
(9) The Company shall enter into all such agreements (including without limitation an underwriting agreement) and perform all such actions as is customary for a company to facilitate the sale of its securities pursuant to registration rights.
(B) With a view to making available to the Purchaser the benefits of Rule 144 under the Securities Act (“Rule 144”) (or its successor rule) and any securities other rule or regulation of the SEC that may at any time permit the Company proposes Purchaser to be included that are not sell Registrable Securities) exceeds Securities to the largest number of shares that can be sold public without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”)registration, the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
covenants and agrees to: (i) firstmake and keep public information available, as those terms are understood and defined in Rule 144, until such date as all of the Purchaser’s Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders)have been resold; and
(ii) secondfile with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Purchaser upon request, as long as the Purchaser owns any securities proposed to be registered Registrable Securities, (x) a written statement by the Company that it has complied in all material respects with the reporting requirements of the Securities Act and the Exchange Act, and (including for y) such other information as may be reasonably requested in order to avail the benefit Purchaser of any other Persons not party to this Agreement)rule or regulation of the SEC that permits the selling of such Registrable Securities without registration.
(fC) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.01 during 6.1:
(1) During the period that is thirty (30) days before the Company’s good faith estimate of commencing on the date of filing ofexecution of the Collaboration Agreement and continuing until the earlier to occur of (1) the Release Date (as defined in Section 7.1), and ending on a (2) the date that of the Announcement of Results, or (3) if the Collaboration Agreement is ninety (90) days after terminated by the Purchaser for any reason, the effective date of, a Company-initiated registration of such termination;
(other than a registration on Form S-8 or any successor or similar forms2) During the one hundred eighty (180) day period following the effective date of the first Registration Statement filed pursuant to this Section 6.1; provided that if the number of shares of Common Stock are limited pursuant to Section 6.1(A), the Purchaser may require an additional registration as soon as such additional registration would be legally permissible;
(3) After the Purchaser has made two (2) demands for registration pursuant to this Section 6.1, and such demands have been declared or ordered effective by the SEC; provided that the Purchaser may require an additional registration for each time the number of shares of Common Stock registered are limited pursuant to Section 6.1(A); or
(4) If the Purchaser holds five percent (5%) or less of the outstanding Common Stock of the Company (calculated based on the number of shares held by the Purchaser and its Controlled Affiliates and the number of shares of Common Stock into which Shares held by the Purchaser and its Controlled Affiliates are convertible), after the date on which the Purchaser is actively employing in good faith commercially reasonable efforts able to cause such registration statement immediately sell all Registrable Securities held or entitled to become effectivebe held by the Purchaser under Rule 144.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Biomarin Pharmaceutical Inc), Securities Purchase Agreement (La Jolla Pharmaceutical Co), Securities Purchase Agreement (Biomarin Pharmaceutical Inc)
Demand Registration. (a) If at At any time from the earlier of (i) six (6) months following the completion of an IPO or (ii) the Initial Public Offeringthird (3rd) anniversary of the date of this Agreement, subject if the Holders representing at least a majority of the Registrable Shares then outstanding (the “Initiating Holders”) shall state in writing that such Holders desire to sell Registrable Shares in the terms public securities markets and request the Company to effect the registration of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))Registrable Shares under the Securities Act, the Company shall receive a request (each such request shall be referred promptly use its best efforts to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Registrable Shares which the Company after has been so requested to register by the completion Holders. For the avoidance of the Initial Public Offering (the “Follow-On Offering”)doubt, at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following not be required to register the date sale or re-sale of receipt by the Company of such request give notice of such Demand Registration at least fifteen any True-Up Shares or Conversion True-Up Shares in an IPO.
(10b) days after receipt of such Demand Registration Notwithstanding anything contained in this Section 2 to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatcontrary, the Company shall not be obligated to effect a Demand Registration unless any registration under the aggregate proceeds expected Securities Act except in accordance with the following provisions:
(i) The Company shall not be obligated to be received from the sale of the Registrable Securities requested use its best efforts to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required file and cause to effect become effective (A) more than two (2) Demand Registrations long-form registration statements initiated pursuant to Section 2(a) (other than those on form S-3 as set forth in Section 4) at the Company’s expense; (B) more than two (2) long-form registration statements initiated pursuant to Section 2(a) at the Holders’ expense; (C) any demand registration statement pursuant to Section 2(a) with an anticipated aggregate offering price of less than $10,000,000; nor (D) any registration statement during any period in which any other registration statement (other than on Form S-8 promulgated under the Securities Act or any successor form thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior one hundred eighty (180) days.
(ii) The Company may delay the filing or effectiveness of any registration statement for a period of up to ninety (90) days after the date of a request for registration pursuant to this Section 2.01.
(b) Promptly after 2 if at the expiration time of such request the Company furnishes to the Holders requesting such registration statement pursuant to this Section 2, a certificate signed by the Chief Executive Officer of the seven-Business Day period referred to in Section 2.01(a)(ii), Company stating that (i) the Company will notify all Registering Shareholders is engaged, or has fixed plans to engage within thirty (30) days of the identities time of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing in a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out firm commitment underwritten public offering of the fault of the Company (Primary Shares in which case the Company shall be obligated holders of Registrable Shares may include Registrable Shares pursuant to pay all Registration Expenses in connection with such revoked request) Section 3 or (ii) the Requesting Shareholder reimburses Board has reasonably determined in its good faith judgment that it would be seriously detrimental to the Company and its stockholders for all Registration Expenses such registration statement to be filed, provided, however, that the Company may only delay the filing or effectiveness of a registration statement pursuant to this Section 2(b) for a total of one hundred and twenty (other than 120) days after the expenses set forth under clause (v) date of the definition of the term Registration Expenses) of such revoked requesta request for registration pursuant to this Section 2.
(ciii) The With respect to any registration pursuant to this Section 2, the Company shall be liable for give notice of such registration to all Holders that are not Initiating Holders and shall pay the holders of all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless Other Shares that are entitled to registration rights and the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included Company may include in such registration have actually been sold thereunder), provided any Primary Shares or Other Shares and shall include all Registrable Shares that a Demand Registration shall Holders that are not Initiating Holders request to be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement registered within 20 days of the SEC or other governmental agency or court.
(e) If mailing of the Requesting Shareholder intends to distribute foregoing notice by the Registrable Securities covered by their request by means of an underwritingCompany; provided, they shall so advise the Company as part of their request pursuant to section 2.01however, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and that if the managing underwriter advises the Company and that the Requesting Shareholder thatinclusion of all Registrable Shares, Primary Shares and/or Other Shares proposed to be included in its viewsuch registration would interfere with the successful marketing (including pricing) of the Registrable Shares proposed to be included in such registration, then the number of shares Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, all the Registrable Shares that are issued or issuable upon conversion of the Series B Preferred Stock and any True-Up Shares (collectively, “Series B Registrable Securities Shares”), subject to the last sentence of Section 2(a), requested to be included in such registration (including any securities that or, if necessary, such Series B Registrable Shares pro rata among the Company proposes Holders thereof based upon the number of Series B Registrable Shares requested to be included registered by each such Holder);
(B) second, all the Registrable Shares that are not Series B Registrable Securitiesshares (“Non-Series B Registrable Shares”) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedor, if necessary for the offering not to exceed the Maximum Offering Sizenecessary, such Non-Series B Registrable Shares pro rata among such Shareholders on the basis of Holders thereof based upon the relative number of Non-Series B Registrable Securities held Shares requested to be registered by each such ShareholderHolder);
(C) third, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders)the Primary Shares; and
(iiD) secondfourth, any securities proposed the Other Shares that are entitled to registration rights requested to be included in such registration (or, if necessary, such Other Shares pro rata among the holders thereof based upon the number of Other Shares requested to be registered by the Company (including for the benefit of any other Persons not party to this Agreementeach such holder).
(fiv) The Company may postpone effecting a registration If the Initiating Holders so elect, the offering of such Registrable Shares pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified such registration shall be in the notice but not exceeding 90 days in the aggregate in any period form of twelve consecutive months (which period may not be extended an underwritten offering. The Initiating Holders shall, at their option, select one or renewed), if more nationally prominent firms of investment bankers reasonably acceptable to the Company furnishes to act as the Requesting Shareholder a certificate signed by lead managing underwriter or underwriters in connection with such offering. In such event, the right of any Person to include such Person’s Registrable Shares or Other Shares in such registration shall be conditioned upon such Person’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company’s chief executive officer stating that (i) effecting enter into an underwriting agreement in customary form with the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (iiunderwriter(s) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause selected for such registration statement to become effectiveunderwriting.
Appears in 3 contracts
Sources: Registration Rights Agreement (Aspen Aerogels Inc), Registration Rights Agreement (Aspen Aerogels Inc), Registration Rights Agreement (Aspen Aerogels Inc)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject Subject to the terms of any “lock-up” agreement entered into with one or more underwriters this Agreement, in the ------------------- event that prior to a date three years after the date of this Agreement (unless waived by such underwriter(s)the "Demand Expiration Date"), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group the Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding Shares representing at least thirty seventy-five percent (3075%) of the Registrable Securities then outstanding, that at any time after six (6) months after the Company effect effective date of the registration under statement covering the Securities Act (i) Company's initial public offering, a written notice that it or they intend to offer or cause to be offered for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), public sale at least twenty fifty percent (2050%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed price to the public is greater than $10,000,0005,000,000), or the Company will so notify all Holders. Upon written request of any Holder given within fifteen (ii15) days after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by such Holder from the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to notification, the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) Company will use its commercially reasonable best efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all cause such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so as may be requested by any Holder (including the Holder giving the initial notice of intent to offer) to be registered, provided that, registered under the Securities Act as expeditiously as possible (a "Demand Registration"). The Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two one (21) Demand Registrations Registration pursuant to this Section 2.01.
6.3. If (bi) Promptly after in the expiration good faith judgment of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders Board of Directors of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to Company, a Demand Registration would be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice materially detrimental to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out and the Board of the fault Directors of the Company (in which case concludes, as a result, that it is essential to defer the Company shall be obligated to pay all Registration Expenses in connection with filing of such revoked request) or registration statement at such time, and (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects furnish to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder Holder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving President of the Company or (ii) effecting stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company for such registration statement to be filed in the near future, then the Company shall have the right to defer such filing for the period during which such Demand Registration would require the premature disclosure of material information be materially detrimental, provided that the Company has may not defer the filing for a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 more than ninety (90) days after receipt of the effective date ofrequest for a Demand Registration, a Companyand more than once in any 12-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided month period. In the event that the Company elects to defer a Demand Registration to a date occurring after the Demand Expiration Date, the Demand Expiration Date shall be extended until such time as the Demand Registration is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectivecomplete.
Appears in 2 contracts
Sources: Stock Purchase and Advertising Agreement (Coolsavings Com Inc), Stock Purchase and Advertising Agreement (Coolsavings Com Inc)
Demand Registration. (a) If at any time following completion after the earlier of (i) four (4) years after the date of this Agreement or (ii) one hundred eighty (180) calendar days after the effective date of the Initial Public Offering, subject to registration statement for the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request (each such request shall be referred from Holders of a majority of the Registrable Securities then outstanding that the Company effect a registration with respect to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) an amount of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (i) within ten (10) calendar days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders; and thereupon shall (iii) as soon as practicable, and in any event within forty five sixty (4560) calendar days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all additional Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within twenty (including for 20) calendar days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this AgreementSection 2.1(b).
(fb) The Notwithstanding the foregoing obligations, if the Company may postpone effecting furnishes to Holders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be 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 otherwise would be required to remain effective, because such action would (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition; 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 sixty (60) calendar days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than 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 sixty (60) day period other than pursuant to a registration relating to the sale of securities to employees of the Company pursuant to a stock option, stock purchase, or similar 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 Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.01 2.1 (i) during the period that is thirty sixty (3060) calendar days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety one hundred eighty (90180) calendar days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms)registration, provided 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; (iii) if the Holders, together with the holders of any other securities of the Company entitled to and requesting inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of Selling Expenses) of less than $5,000,000; or (iv) if, in a distribution not underwritten, 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 2.3. A registration shall not be counted as “effected” for purposes of this Section 2.1 until such time as the applicable registration statement has been declared effective by the SEC, 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 Section 2.7, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Proteon Therapeutics Inc), Investors’ Rights Agreement (Proteon Therapeutics Inc)
Demand Registration. (a) If at any time following completion one hundred eighty (180) days after the effective date of the Initial Public Offering, subject to registration statement for the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty sixty percent (3060%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Preferred Registrable Securities then outstanding (or any lesser percentage if that the Company file a Form S-1 registration statement with respect to the Registrable Securities then outstanding for which the anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed be at least $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof10 million, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen shall: (i) within ten (10) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders; and thereupon shall (iii) as soon as practicable, and in any event within forty five ninety (4590) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a Form S-1 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all additional Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such ShareholderHolder to the Company within twenty (20) days of the date the Demand Notice is given, or and in each case, subject to the limitations of Section 2.1(c) and Section 2.3.
(b) If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least twenty-five percent (25%) of the Preferred Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities for which the anticipated aggregate offering price, net of Selling Expenses, would be at least $1 million, then the Company shall: (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other proportion as shall mutually be agreed to by all such Registering Shareholders)than the Initiating Holders; and
and (ii) secondas soon as practicable, and in any securities proposed event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (including for 20) days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this Agreement)Section 2.1(c) and Section 2.3.
(fc) The Notwithstanding the foregoing obligations, if the Company may postpone effecting furnishes to Holders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board of Directors it would be 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 otherwise would be required to remain effective, because such action would: (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition; 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 for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than once (1x) 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 sixty (60) day period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (2) registrations pursuant to Section 2.1(a); or (iii) 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 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b): (A) 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (B) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, 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 Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Spero Therapeutics, Inc.), Investors’ Rights Agreement (Spero Therapeutics, Inc.)
Demand Registration. (a) If at any time following completion after 180 days from the date of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), ------------------- this Agreement the Company shall receive a request be requested in writing by LCO (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the and LCO then holds any issued and outstanding Registrable Securities then outstanding, that the Company at such time) to effect the registration under the Securities Act (i) for the first Public Offering of shares of the Company after Company's Common Stock then owned by Holder (which request shall specify the completion aggregate number of shares intended to be offered and sold by Holder, shall describe the nature or method of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts proposed offer and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then sale thereof and shall contain an undertaking by Holder to cooperate fully with the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration in order to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested permit the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice comply with all applicable requirements of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders Act and the number rules and regulations thereunder and to obtain acceleration of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registrationcontemplated thereby), the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) effect the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) registration of such revoked request.securities on an appropriate form under the Act, provided that:
(c) The Company 2.1 LCO's rights under this Section 2 shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless exercisable only if the Requesting Shareholder elects shares as to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to which LCO requests registration have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period an aggregate value of at least 180 $500,000 based on the average of the closing sale price for the Company's common stock as listed on the American Stock Exchange or any other exchange on which the Company's common stock then may be traded for the thirty (30) trading- day period immediately preceding the date of such request for registration;
2.2 The independent members of the Company's Board of Directors, with the advice of such investment bankers or securities professionals as the Board shall deem necessary, shall have determined in good faith that the cost of complying with the request for registration under this Section 2 would not have a materially adverse effect upon the Company, its operations or the market for the Company's common stock, provided, however, that if the independent members of the Company's Board of Directors determine in good faith that the cost of complying with the request for registration would have a material adverse effect upon the Company, its operations or the market for the Company's common stock, the Company may decline Holder's request to register Holder's Registrable Securities under the Act, provided further, however, that in such event the Company may not thereafter again decline LCO's request for registration based upon this Section so long as such subsequent request is received by the Company more than 120 days after LCO's request for registration which was declined based upon this Section;
2.3 LCO shall be entitled to three demand registrations, provided that registrations two and three may be effected on Form S-3 or its then equivalent form promulgated by the SEC and, provided further, that any request for registration pursuant to this Section 2 which does not result in the declaration of effectiveness of a registration statement (which effectiveness is maintained continuously for at least 120 days or such shorter period ending when all shares to which LCO has requested registration in which all Registrable Securities of the Registering Shareholders included in such registration accordance herewith have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after in accordance with such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of registration) covering the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, offer and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number sale of shares of Registrable Securities owned by Holder and requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offeringstatement, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis whether as a result of the relative number withdrawal of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered the registration statement by the Company (including or through other action or inaction of the Company or for any other reason except for the benefit voluntary decision of any other Persons Holder to terminate the registration after the request for such registration has been delivered to the Company, shall not party to this Agreement).
(f) The Company may postpone effecting a be counted in determining the number of times registration rights have been exercised pursuant to this Section 2.01 on two occasions during 2;
2.4 The Company shall be entitled to postpone the filing of any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not registration statement otherwise required to be extended or renewed)prepared and filed by it pursuant to this Section 2, if at the Company furnishes to time it receives a request for such registration, the Requesting Shareholder a certificate signed by independent members of the Company’s chief executive officer stating 's Board of Directors determine that (i) effecting the such registration and offering would materially and adversely interfere with a significant any existing or then presently contemplated financing, acquisition, corporate reorganization, reorganization or other similar material transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that Company, and the Company has a bona fide business purpose to preserve as confidential. In additionpromptly gives LCO written notice of such determination, the Company provided, however, that such postponement shall not be obligated extend beyond the time that such material interference continues to effect, or exist; and
2.5 LCO shall have no right to take demand registration with respect to any action to effect, any registration pursuant to Section 2.01 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 shares within ninety (90) calendar days after the effective date ofof any registration statement previously filed by the Company, a Company-initiated registration (other than a registration statement on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveform.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ion Laser Technology Inc), Registration Rights Agreement (Ion Laser Technology Inc)
Demand Registration. (a) If at any time following completion after the date hereof, the Company receives a written notice from the Holder(s) of at least a majority of the Initial Public Offering, subject to Registrable Securities (the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)Demand Notice”), the Company shall receive shall, on or prior to the Filing Date, prepare and file with the SEC a request (each such request Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be referred on Form F-3 (or, if Form F-3 is not then available to herein the Company, on such form of Registration Statement as is then available to effect a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) registration for resale of the Registrable Securities then outstanding, that the Securities). The Company effect the registration shall use its best efforts (i) to cause such Registration Statement to be declared effective under the Securities Act (iunless it becomes effective automatically upon filing) for the first Public Offering of the Company as promptly as possible after the completion filing thereof, but in any event prior to the Effective Date, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the Initial Public Offering date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Follow-On OfferingEffective Period”), at least twenty percent (20%) . The Company shall telephonically request the effectiveness of the Requesting Shareholder’s Registration Statement (unless it becomes effective automatically upon filing) as of 5:00 p.m. Eastern Time on the Effective Date. The Company shall not be required to (A) take any action to effect any registration pursuant to this Section 3.1(a) after the Company has effected three (3) registrations pursuant to this Section 3.1(a) and each registration has been declared effective or (B) effect more than one (1) registration pursuant to this Section 3.1(a) in any six-month period to the extent the Company has not suspended use of the Registration Statement or Prospectus therein pursuant to Section 3.1(d); provided, however, the Holders shall not be subject to the restrictions on registration set forth in (A) and (B) above upon any breach by the Company or any of its Subsidiaries of the obligations under Section 6.4 or commencement by any Governmental Authority of an investigation into the Company or any of its Subsidiaries for any corruption or bribery allegation.
(b) If the Company is unable to Register all of the Registrable Securities then outstanding for resale under Rule 415 due to limits imposed by the SEC’s interpretation of Rule 415, the Company will file a Registration Statement under the Securities Act with the SEC covering the resale by the Holders of such lesser amount of the Registrable Securities as the Company is able to Register pursuant to the SEC’s interpretation of Rule 415 and use its best efforts to have such Registration Statement declared effective as promptly as possible and, when permitted to do so by the SEC, to file subsequent Registration Statement(s) under the Securities Act with the SEC covering the resale of any Registrable Securities that were omitted from previous Registration Statement(s) and use its best efforts to have such registration declared effective as promptly as possible thereafter. In furtherance of the Company’s obligations set forth in the preceding sentence, the Parties agree that in the event that any Holder shall deliver to the Company a written notice at any time after the later of (x) the date which is six months after the Effective Date of the latest Registration Statement filed pursuant to Section 3.1(a) or any lesser percentage if the anticipated aggregate offering priceSection 3.1(b), net of underwriting discounts and commissions, would exceed $10,000,000)as applicable, or (iiy) after the completion date on which all Registrable Securities Registered on all of the Follow-On Offeringprior Registration Statements filed pursuant to Section 3.1(a) or Section 3.1(b) are sold, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then that the Company shall as promptly as practicable file, within thirty (30) days following the date of receipt by the Company of such request give notice of such Demand written notice, an additional Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Statement Registering all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received were omitted from the sale of the Registrable Securities requested to be included in such Demand initial Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestStatement.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection expenses associated with any Demand Registrationeach registration (other than underwriting discounts and commissions related to the sale of Registrable Securities), regardless including all registration and filing fees, printing, duplicating, word processing, facsimile and delivery expenses, fees and disbursements of whether such Registration is effectedcounsel for the Company, unless the Requesting Shareholder elects to pay such Registration Expenses as described reasonable fees and disbursements of one counsel representing all Holders participating in the last sentence registration, “blue sky” fees and expenses and the expense of Section 2.01(b).
(d) A Demand Registration shall not be deemed any special audits incident to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with required by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that but excluding the compensation of regular employees of the Company proposes to which shall be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate paid in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed event by the Company’s chief executive officer stating that (i) effecting ). Notwithstanding the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In additionabove, the Company shall not be obligated required to effectpay for any expenses of any registration proceeding begun pursuant to Section 3.1(a) if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities Then Outstanding to be Registered (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), or unless the Holders of a majority of the Registrable Securities Then Outstanding agree to take any action forfeit their right to effect, any one (1) corresponding registration pursuant to Section 2.01 during 3.1(a); provided, however, if at the period that is thirty time of such withdrawal, the Holders have learned of a material adverse change in the condition, business, or prospects of the Company not known to the 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, then the Holders shall not be required to pay any of such expenses and such registration shall not constitute the use of a demand registration pursuant to Section 3.1(a). All underwriting discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable Securities pursuant to this Agreement shall be borne by the holders of the securities Registered pro rata on the basis of the number of shares Registered.
(30d) days before In the event that, in the reasonable judgment of the Company’s good faith estimate , it is advisable to suspend use of a Registration Statement or Prospectus therein due to pending material developments or other events that have not yet been publicly disclosed and as to which the date Company believes public disclosure would be detrimental to the Company, the Company shall notify the Holders in writing to such effect, and, upon receipt of filing ofsuch notice, and ending on the Holders shall immediately discontinue any sales of Registrable Securities pursuant to such Registration Statement or Prospectus until the Holders have received copies of a date that is ninety (90) days after supplemented or amended Prospectus or until the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided Holders are advised in writing by the Company that the then current Prospectus may be used and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. Notwithstanding anything to the contrary herein, the Company is actively employing shall not exercise its rights under the preceding sentence to suspend sales of Registrable Securities for a period in good faith commercially reasonable efforts to cause such registration statement to become effectiveexcess of forty-five (45) consecutive calendar days during any 12-month period; provided, however, no suspension period may begin until at least twelve (12) months have passed since any previous suspension period.
Appears in 2 contracts
Sources: Investor Rights Agreement (News Corp), Investor Rights Agreement (Bona Film Group LTD)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive at any time after the earlier of (i) three years from the date hereof and (ii) 180 days after the effective date of an initial public offering of its Common Stock ("IPO") a written request from Initiating Holder(s), then the Company shall, within 20 business days of the receipt of such written request, give written acknowledgment of such request (each such request shall be referred "Request Acknowledgment") to herein all Holders, and use its best efforts to effect, as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein soon as the “Requesting Shareholder”)practicable, holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s all Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net owned of underwriting discounts record by all Holders and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, which such Holders request to be registered and included in each case, specifying the intended method of disposition thereof, then such registration by written notice given by such Holders to the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) within 20 days after receipt of such Demand Registration to the other ShareholdersRequest Acknowledgment; provided, if anyhowever, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless any such registration, qualification or compliance pursuant to this Section 1.3:
(i) if the aggregate proceeds expected to be received from the sale value of the Registrable Securities requested proposed to be included sold by such Holders in such Demand Registration equals or exceeds offering is less than $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.1,000,000;
(bii) Promptly after if such offering would (y) require disclosure of material nonpublic information that the expiration Board of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault Directors of the Company determines in good faith would be in the best interests of the Company not to disclose or (z) have a material adverse effect (as determined by the Board of Directors in good faith) on the Company or its shareholders in relation to any financing, acquisition, corporate reorganization or other material transaction actively pursued by the Board of Directors of the Company, involving the Company or any of its affiliates, in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registrationevent, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence case of Section 2.01(b).
both (dy) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”z), the Company shall include in have the right to defer the filing of the registration statement no more than once during any 12-month period for a period of not more than 120 days after receipt of the request of such registration, in Holders under this Section 1.3 (the priority listed below, up Company must furnish to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such Holders requesting registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by its Chairman of the Company’s chief executive officer stating that Board of Directors, Chief Executive Officer or Chief Financial Officer certifying as to any such determination made by the Board of Directors);
(iiii) effecting if the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 request is made during the period that is thirty (30) days before starting with the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) 90 days after following the effective date of, a registration statement pertaining to an underwritten public offering of securities for the account of the Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective; or
(iv) The Company is obligated to effect only one such registration pursuant to this Section 1.3 (which registration must be declared or ordered effective).
(b) If Initiating Holder(s) submit a registration request under this Section 1.3 and intend to distribute the Registrable Securities covered by such request by means of an underwriting (an "Underwritten Offering"), then the Initiating Holder(s) shall so advise the Company as a part of the request made pursuant to this Section 1.3 and the Company shall include such information in the written notice referred to in Section 1.3(a). In such event, the right of Investor and the other Holders to include their Registrable Securities in such registration shall be conditioned upon such Holders' participation in such underwriting and the inclusion of the Holders' Registrable Securities in the underwriting to the extent provided herein. If Investor or the other Holders propose to distribute their securities through such underwriting, they shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holder(s) from a list of three nationally-recognized underwriters proposed by the Company. Any Registrable Securities excluded and withdrawn from such underwriting shall be withdrawn from the registration. If the representative of such underwriters determines in good faith that marketing factors require a limitation of the number of shares to be underwritten and so advises Investor and the Holders in writing, the Registrable Securities to be sold by Investor shall be the last securities (including any other registrable securities of any other shareholder with registration rights) to be excluded from such registration.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Data Return Corp), Investor's Rights Agreement (Data Return Corp)
Demand Registration. (a) If at any time following completion commencing ten months from the ------------------- date of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))Company's initial public offering on Form SB-2, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) 50% of the Registrable Securities then outstandingshares of Shareholder Common Stock held by Shareholders other than Dr. Edmund Sun, a written request that the Company effect any registration of Shareholder Common Stock, the registration under the Securities Act Company will:
(ia) for the first Public Offering promptly give written notice of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, proposed registration to all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall ; and
(ib) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement (on Form S-3 or any successor form or on Form S-1 if Form S-3 is not then available) with the SEC within 75 days after the initiating Shareholders request and use its best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act, ) as would permit or facilitate the sale and (ii) use its commercially reasonable efforts to effect, distribution of such shares of Shareholder Common Stock as expeditiously as possible, and are specified in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholdersrequest, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by all Shareholder Common Stock of any Shareholders joining in such request as are specified in a written request received by the Company within seven Business Days 30 days after receipt of such Shareholders receive written notice from the Company’s notice of the Demand Registration; Provided, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, however that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required take any action to effect more than two (2) Demand Registrations any such registration, qualification or compliance pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size3.1:
(i) firstIn any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, all Registrable Securities requested qualification or compliance unless the Company is already subject to be included service in such registration jurisdiction and except as may be required by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); andAct;
(ii) secondIf, any securities proposed to be registered by the Company (including at such time as a request for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed)3.1 is pending, if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any already effected one such registration pursuant to this Section 2.01 during 3.1, and such registration has been declared or ordered effective; or
(iii) During the period that is thirty (30) days before the Company’s good faith estimate of starting with the date of 60 days prior to the filing of, and ending on a date that is ninety (90) days after three months following the effective date of, a Company-initiated registration statement (other than with respect to a registration on Form S-8 statement relating to a Rule 145 transaction, an offering solely to employees or any successor or similar formsother registration which is not appropriate for the registration of Shareholder Common Stock), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Digital Video Systems Inc), Registration Rights Agreement (Digital Video Systems Inc)
Demand Registration. (a) If If, at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with more than one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”1) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company year after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the this Agreement, Company of such request give receives written notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, from Investor requesting that Company file a registration statement under the Securities ActAct covering the registration of at least fifty percent (50%) of the Shares then owned by Investor, and (ii) Company will use its commercially reasonable best efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of effect the registration statement, in each case covering:
(i) subject to under the restrictions set forth in Sections 2.01(e), Act of all Registrable Securities for Shares which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested investor requests to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholdersregistered, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the legally permissible sale or other disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so by Investor to be so registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder Investor intends to distribute the Registrable Securities Shares covered by their its request by means of an underwriting, they shall it will so advise the Company as a part of their the request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration made pursuant to this Section 2.01 on two occasions during any period 2. The underwriter selected by Investor shall be reasonably acceptable to Company. In such event, the right of twelve consecutive months for a reasonable time specified Investor to include its Shares in the notice but not exceeding 90 days registration shall be conditioned upon Investor's participation in such underwriting and the inclusion of the Shares in the aggregate underwriting. Company will enter into (together with Investor and the other shareholders distributing their securities through the underwriting) an underwriting agreement with the underwriter or underwriters selected by Investor for the underwriting, provided that the underwriting agreement is in any period of twelve consecutive months customary form and is reasonably acceptable to Company.
(which period may not be extended or renewed)c) Notwithstanding the foregoing, if the Company furnishes to the Requesting Shareholder Investor a certificate signed by the Company’s chief executive officer President of Company stating that (i) effecting in the good faith judgment of the Board of Directors of Company, it would be detrimental to Company and its shareholders for the registration would materially statement to be filed and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving it is therefore essential to defer the Company or (ii) effecting filing of the registration would require statement, Company will have the premature disclosure right to defer the filing for a period of material information not more than ninety (90) days after receipt of the request of investor; provided, however, that the Company has a bona fide business purpose to preserve as confidential. In addition, the may not utilize this right more than once in any twelve-month period.
(d) Company shall will not be obligated to effectprepare, file or to take any action to effect, effect any registration pursuant to this Section 2.01 during 2:
(i) Within one year from the date hereof;
(ii) After Company has effected a prior registration pursuant to this Agreement and such registration has been declared or ordered effective; or
(iii) During the period that is thirty starting with the date ninety (3090) days before the prior to Company’s 's good faith estimate of the date of filing of, and ending on a date that is ninety one hundred eighty (90180) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 subject to Sections 1 or any successor or similar forms), 2 hereof; provided that the Company is actively employing in good faith commercially using reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Image Entertainment Inc), Registration Rights Agreement (Image Entertainment Inc)
Demand Registration. (ai) If If, at any time following completion at least 180 days after the closing date of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request from the Initiating Holders that the Company file a Form S-1 registration statement covering either (each such request shall be referred to herein as x) the potential sale of all or a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) portion of the Registrable Securities then outstanding, that outstanding with an anticipated aggregate offering price (excluding the Company effect the registration under the Securities Act offering price of any shares subject to an over-allotment option) of at least $7,500,000 or (iy) for the first Public Offering all of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereofheld by a Comprehensive Rights Holder whose rights under this Agreement have not terminated pursuant to Section 11, then the Company shall as promptly as practicable following shall: (A) within ten days after the date of receipt by the Company of such request is given, give notice of such thereof (the “Demand Registration at least fifteen Notice”) to all Holders other than the Initiating Holders; and (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (iB) as soon as practicable, and in any event within forty five (45) sixty days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, use its reasonable best efforts to file and make effective a Form S-1 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all additional Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such ShareholderHolder to the Company within twenty days of the date the Demand Notice is given, or and in such other proportion as shall mutually be agreed each case, subject to by all such Registering Shareholders); andthe limitations of Section 2(a)(iii) and Section 3.
(ii) secondIf at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from the Initiating Holders that the Company file a Form S-3 registration statement covering either (x) the potential sale of all or a portion of the Registrable Securities then outstanding with an anticipated aggregate offering price (excluding the offering price of any securities proposed shares subject to an over-allotment option) of at least $3,750,000 or (y) all of the Registrable Securities then held by a Comprehensive Rights Holder whose rights under this Agreement have not terminated pursuant to Section 11, then the Company shall: (A) within ten days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (B) as soon as practicable, and in any event within 45 days after the date such request is given by the Initiating Holders, file and make effective a Form S-3 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company (including for within twenty days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this Agreement)Section 2(a)(iii) and Section 3.
(fiii) The Notwithstanding the foregoing obligations, if the Company may postpone effecting furnishes to Initiating Holders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2(a) a certificate signed by the Company’s chief executive officer Chief Executive Officer stating that in the good faith judgment of the Board of Directors of the Company it would be 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 otherwise would be required to remain effective, because such action would (iA) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company, (iiB) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition, or (C) 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 120 days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than once in any consecutive twelve-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 120-day period other than Excluded Registrations.
(iv) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 2(a) (A) after the Company has effected a total of four registrations pursuant thereto, or (B) if the Company has effected a registration pursuant to Section 2(a) within the six-month period immediately preceding the date of such request. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2(a)(i) (A) during the period that is sixty days before the Company’s good faith estimate of the date of filing of, and ending on a date that is 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, or (B) if the Initiating Holders propose to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2(a)(ii). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2(a)(ii) 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective. A registration shall not be counted as “effected” for purposes of this Section 2(a)(iv) until such time as the applicable registration statement has been declared effective by the SEC, 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 Section 6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2(a)(iv).
Appears in 2 contracts
Sources: Registration Rights Agreement (ACM Research, Inc.), Registration Rights Agreement (ACM Research, Inc.)
Demand Registration. (a) If at any time Commencing six (6) calendar months following completion an IPO pursuant to the provisions of the Initial Public Offering, subject Securities Act (other than a registration statement relating either to the terms sale of any “lock-up” agreement entered into with one securities to employees of the Company pursuant to a share option, share purchase or more underwriters similar plan or pursuant to a merger, exchange offer or a transaction of the type specified in Rule 145 of the Securities Act) until the Date of Termination (unless waived by such underwriter(s)as defined in Clause 2.11 hereof), if the Company shall receive have received a written request (each such request shall be referred to herein as a the “Demand RegistrationRegistration Request”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) % of the voting power underlying the outstanding Registrable Securities then outstanding, that (the Company effect the “Initiating Holders”) to file a registration under the Securities Act of all or part of their Registrable Securities, then, the Company shall:
(i) for the first Public Offering promptly give written notice of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting such request to each other Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or ; and
(ii) after use its best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the completion sale and distribution of the Follow-On Offering, all or any such portion of such Initiating Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Requesting Shareholder’s Registrable Securities and, of any other Holder joining in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least as are specified in a written request given within fifteen (1015) days after receipt of such Demand Registration to written notice from the other ShareholdersCompany; provided, if anyhowever, and thereupon that the Company shall (i) as soon as practicable, and in any event within forty file such registration statement with the SEC no later than forty-five (45) days after the date of the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, Request and (ii) use its commercially reasonable efforts shall cause it to effect, as expeditiously as possible, and in any event within one be effective no later than one-hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:such filing.
(ib) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the The Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in any such Demand Registration equals registration, qualification or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations compliance, pursuant to this Section 2.01.Clause 2.2(a):
(bi) Promptly after the expiration Company has effected one (1) registration pursuant to this Clause 2.2 and such registrations have been declared or ordered effective;
(ii) if the Initiating Holders, together with the holders of any other securities of the seven-Business Day period referred Company entitled to inclusion in Section 2.01(a)(iisuch registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price (net of any underwriters’ discounts or commissions) of less than $7,500,000 (seven million five hundred thousand United States Dollars), ;
(iii) if the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number Initiating Holders propose to dispose of shares of Registrable Securities requested that may be immediately registered on Form F-3 pursuant to a request made in accordance with Clause 2.4;
(iv) 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; or
(v) if the Company shall furnish to such Initiating Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors, it would be seriously detrimental to the Company or its shareholders for such registration to be included therein. At any time prior effected at such time, in which event the Company shall have the right to defer the effective date filing of the registration statement relating to such registration, for a period of not more than one-hundred twenty (120) days from the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out date of receipt of the fault request of the Company (in which case Initiating Holder or Holders; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period; provided further, that the Company shall not register any Shares for the account of itself or any other shareholder during such 120 day period; and provided further, that, in such event, the Initiating Holder or Holders shall be obligated entitled to withdraw such request and, if such request is withdrawn, such registration shall not count as a registration pursuant to Clause 2.2(a) and the Company shall pay all any Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestwithdrawn registration.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then they shall so advise the Company as a part of their request made pursuant to section 2.01, this Clause 2.2 and the Company shall include such information in their the written notice referred to in Clause 2.2 (a)(i). In such event the rights 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 other Shareholdersextent provided herein. If a Demand Registration involves All holders of Registrable Securities proposing to distribute their securities through such underwriting shall enter into an underwritten Public Offering and underwriting agreement in the customary form with the managing underwriter advises or underwriters selected for such underwriting by a majority in interest of the Initiating Holders and reasonably acceptable to the Board of Directors of the Company. Notwithstanding any other provision of this Clause 2.2, if the underwriter(s) advise(s) the Company in writing that market factors require a limitation of the number of securities to be underwritten, then the Company shall so advise all holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to that may be included in such registration (including any securities that the Company proposes to underwriting shall be included that are not Registrable Securitiesreduced as required by the underwriter(s) exceeds and allocated among the largest number holders of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, on a pro rata among such Shareholders basis based on the basis of the relative total number of Registrable Securities held by each such ShareholderHolder requesting registration (including the Initiating Holders); provided, or however, that the number of shares of Registrable Securities then outstanding to be included in such underwriting and registration shall not be reduced unless all other proportion as securities of the Company (whether newly issued or held by third parties) are first entirely excluded from the underwriting and registration. Any Registrable Securities excluded and withdrawn from such underwriting shall mutually be agreed to by all such Registering Shareholders); andwithdrawn from the registration.
(iid) secondIf any Holder disapproves of the terms of the underwriting, such person may elect to withdraw from such underwriting by written notice to the Company, the managing underwriter and the Initiating Holders. The Registrable Securities and/or other securities held by such Holder affected shall be withdrawn from the registration.
(e) If the distribution of Registrable Securities is being effected by means of an underwriting and if the managing underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account if the managing underwriter so agrees. The inclusion of such shares shall be on the same terms as the registration of shares held by the holders of Registrable Securities participating in such registration. If the underwriters subsequently exclude some of the securities to be registered, the securities to be sold for the account of the Company, shall be excluded in their entirety prior to the exclusion of any securities proposed Registrable Securities to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)Initiating Holders.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Yandex N.V.)
Demand Registration. (a) If at any time following completion Buyer, on its own behalf and on behalf of the Initial Public Offeringother Holders, subject may make up to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the three written requests for registration under the Securities Act of all or any part of the Registrable Securities held by the Holders (each, a "Demand Registration"); provided that (i) for the first Public Offering of the Company no Demand Registration may be requested within 180 days after the completion of the Initial Public Offering (the “Follow-On Offering”)preceding request for a Demand Registration, at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after each Demand Registration must be (x) in respect of Registrable Securities with a fair market value of at least $10,000,000 or (y) in respect of all remaining Registrable Securities and have a fair market value of at least $5,000,000 and, provided further, at the completion request of the Follow-On OfferingCorporation, all or any portion Buyer and Holders shall accept in lieu of one of the Requesting Shareholder’s Demand Registrations, an agreement by the Corporation to permit sales of Registrable Securities and, in each case, specifying under a "shelf registration" under Rule 415 if such registration remains continuously effective for a period of not less than 180 days. Such request will specify the aggregate number of shares of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. A registration will not count as a Demand Registration until it has become effective; provided should a Demand Registration not become effective due to the failure of a Holder to perform its obligations under this Exhibit B or the inability of the requesting Holders to reach agreement with the underwriters for the proposed sale (the "Underwriters") on price or other customary terms for such transaction, or in the event the requesting Holders withdraw or do not pursue the request for the Demand Registration (in each of the foregoing cases, provided that at such time the Corporation is in compliance in all material respects with its obligations under this Exhibit B), then such Demand Registration shall be deemed to have been effected (provided that if the Demand Registration does not become effective because of a Material Adverse Effect that occurs subsequent to the date of the written request made by the requesting Holders, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless been effected).
(b) In the event that Buyer withdraws or does not pursue a request for a Demand Registration and, pursuant to Section 2.01(a) hereof, such Demand Registration is deemed to have been effected, the Holders may reacquire such Demand Registration (such that the withdrawal or failure to pursue a request will not count as a Demand Registration hereunder) if the Selling Holders reimburse the Corporation for any and all Registration Expenses incurred by the Corporation in connection with such request for a Demand Registration; provided that the right to reacquire a Demand Registration may be exercised only once.
(c) If the Selling Holders so elect, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering. A majority in interest of the Selling Holders shall have the right to select the managing Underwriters and any additional investment bankers and managers to be used in connection with any offering under this Section 2.01, subject to the Corporation's approval, which approval shall not be unreasonably withheld.
(d) The Selling Holders will inform the Corporation of the time and manner of any disposition of Registrable Common Stock, and agree to reasonably cooperate with the Corporation in effecting the disposition of the Registrable Common Stock in a manner that does not unreasonably disrupt the public trading market for the Common Stock.
(e) The Corporation will have the right to preempt any Demand Registration with a primary registration statement relating thereto by delivering written notice (iwithin five business days after the Corporation has received a request for such Demand Registration) of such intention to Buyer indicating that the Corporation has become effective under identified a specific business need and use for the Securities Act proceeds of the sale of such securities and (ii) has remained effective for the Corporation shall use commercially reasonable efforts to effect a primary registration within 60 days of such notice. In the ensuing primary registration, the Holders will have such piggyback registration rights as are set forth in Section 2.02 hereof. Upon the Corporation's preemption of a requested Demand Registration, such requested registration will not count as the Holders' Demand Registration; provided that a Demand Registration will not be deemed preempted if the Holders are permitted to sell all requested securities in connection with the ensuing primary offering by exercising their piggyback registration rights. The Corporation may exercise the right to preempt only twice in any 360-day period; provided, that during any 360 day period there shall be a period of at least 180 120 consecutive days (or such shorter period in during which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that Selling Holders may effect a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtRegistration.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Madison Investors Corp), Registration Rights Agreement (Independence Holding Co)
Demand Registration. (a) If at any time following completion after the earlier of (i) three (3) years after the date of this Agreement or (ii) one hundred eighty (180) days after the effective date of the Initial Public Offering, subject to registration statement for the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), Holders holding at least thirty forty percent (3040%) of the Registrable Securities then outstanding, outstanding that the Company effect file a Form S-1 registration statement with respect to the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof10 million, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (x) within ten (10) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders; and thereupon shall (iy) as soon as practicable, and in any event within forty five sixty (4560) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a Form S-1 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (including 20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 4.2(c) and 4.4.
(b) If at any securities time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least twenty percent (20%) of the Registrable Securities then outstanding that the Company proposes file a Form S-3 registration statement with respect to be included that are not outstanding Registrable Securities) exceeds the largest number Securities of shares that can be sold without such Holders having an adverse effect on such offeringanticipated aggregate offering price, including the price net of Selling Expenses, of at which such shares can be sold (the “Maximum Offering Size”)least $1 million, then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) firstwithin ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within twenty (including for 20) days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this Agreement)Subsections 4.2(c) and 4.4.
(fc) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in Notwithstanding the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed)foregoing obligations, if the Company furnishes to the Requesting Shareholder Holders requesting a registration pursuant to this Subsection 4.2 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board it would be 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 otherwise would be required to remain effective, because such action would (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition; or (iii) render the Company unable to comply with requirements under the 1933 Act or 1934 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 the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice 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 (90) day period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 Subsection 4.2(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 4.2(a); or (iii) 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 Subsection 4.2(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 4.2(b): (i) 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 4.2(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 4.2(d) until such time as the applicable registration statement has been declared effective by the SEC, 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 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Subsection 4.2(d).
Appears in 2 contracts
Sources: Investor Rights Agreement (Clearside Biomedical, Inc.), Investor Rights Agreement (Clearside Biomedical, Inc.)
Demand Registration. (a) If at At any time following completion after one hundred eighty (180) days after the consummation of the Initial Public OfferingMerger, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), if the Company shall receive a written request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, Stockholder that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting ShareholderStockholder’s Registrable Securities and(a “Demand Registration”), in each case, and specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts efforts, consistent with the terms of this Stockholder Agreement, to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to under the restrictions set forth in Sections 2.01(e), Securities Act of all Registrable Securities for which the Requesting Shareholder Stockholder has requested registration under this Section 2.015.01; provided that, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid5.01(d) of the Registrable Securities so to be registered, provided thathereof, the Company shall not be obligated to effect a more than three Demand Registrations (other than short-form registrations on Form S-3 and provided that no Demand Registration unless the aggregate proceeds expected to shall be received from the sale made within one hundred eighty (180) days of the Registrable Securities requested to be included in such a prior Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01Registration).
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder Stockholder may revoke such request, without liability, request by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any each Demand Registration, regardless of whether such Registration registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 one hundred twenty (120) days (or such shorter period in which all Registrable Securities of the Registering Shareholders Stockholder included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtcourt and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Demand Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than 75% of the Registrable Securities of the Stockholder sought to be included in such registration are included.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering public offering and the managing underwriter advises the Company and the Requesting Shareholder Stockholder that, in its view, the number of shares of Registrable Securities requested that the Stockholder and the Company propose to be included include in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Demand Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Demand Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration registered by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders)Stockholder; and
(ii) second, any securities all shares of Common Stock proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)Company.
(f) The Company may postpone effecting defer the filing (but not the preparation) of a registration pursuant to this statement required by Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on 5.01 until a date that is not later than ninety (90) days after the effective date ofwhich is thirty (30) days after the request to file such registration statement if (i) at the time the Company receives the request to register shares, a Company-initiated registration (other than a registration on Form S-8 the Company or any successor of its Subsidiaries are engaged in confidential negotiations or similar forms), provided other confidential business activities (or the Board determines that the Company is actively employing at such time otherwise in possession of material non-public information with respect to the Company), disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board determines in good faith commercially that such disclosure would be materially detrimental to the Company and its stockholders, or (ii) prior to receiving the request to register shares, the Board had determined to effect a registered underwritten public offering of the Company’s securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable efforts diligence to cause effect such offering. A deferral of the filing of a registration statement pursuant to become effectivethis Section 5.01(f) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the negotiations or other activities are disclosed or terminated (or such material non-public information has been publicly disclosed by the Company), or, in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 5.01(f), the Company shall promptly (but in any event within ten (10) days), upon determining to seek such deferral, deliver to the Stockholder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 5.01(f) and (unless the Stockholder had previously requested in writing that the Company not disclose to it such information under this paragraph) a general statement of the reason for such deferral and an approximation of the anticipated delay. The Company may defer the filing of a particular registration statement pursuant to this Section 5.01(f) only once in any 360-day period.
Appears in 2 contracts
Sources: Stockholder Agreement (Viasystems Group Inc), Stockholder Agreement (Viasystems Group Inc)
Demand Registration. (a) If at any time following completion during the Eligible Period the Stockholder requests in writing (the "Stockholder Demand") that the Company file a registration statement on Form S-3 (or any successor form to Form S-3, or, if Form S-3 is not then available, on Form S-1 or any other available form) for a public offering of shares of the Initial Public OfferingRegistrable Shares, subject to the terms anticipated aggregate offering price of any “lock-up” agreement entered into with one or more underwriters which, net of standard underwriting fees and discounts, is at least five million dollars (unless waived by such underwriter(s)$5,000,000), the Company shall receive a request (each shall, subject to Section 4.1 hereof, file such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (Registration Statement with the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “FollowSEC within forty-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) its receipt of such request. The Company shall use its commercially reasonable efforts to effectcause such Registration Statement to be declared effective as soon thereafter as practicable and keep such registration statement effective until the Stockholder notifies the Company in writing that the Company is no longer required to keep such Registration Statement effective. In no event, as expeditiously as possiblehowever, and in any event within shall the Company be required to (i) effect more than four (4) registrations pursuant to this section or (ii) keep one or more registration statements filed pursuant to this section effective for more than an aggregate of one hundred twenty (120) days after days. In the date event the Demand Registration registration is given by the Requesting Shareholderproposed to be part of a firm commitment underwritten public offering, the effectiveness substantive provisions of the Section 2.3 hereof shall be applicable to each such registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration initiated under this Section 2.012.1 and the piggyback registration rights of Holders and Automaker Holders (to the extent provided for in the Existing Registration Rights Agreement and the Automaker Registration Rights Agreement) shall be applicable, and
(ii) subject to the restrictions set forth in Sections 2.01(e)Section 2.3 below, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register a registration effected pursuant to this Section 2.01, by request received by 2.1.
(b) Notwithstanding the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatforegoing, the Company shall not be obligated to take any action pursuant to subparagraph (a):
(i) if the Company, within ten (10) days of the receipt of the Stockholder Demand, gives notice of its bona fide intention to effect the filing of a Demand Registration unless registration statement with the aggregate proceeds expected SEC within forty-five (45) days of receipt of such demand (other than a registration relating primarily to the sale of securities to participants in a Company stock plan of employee benefit plan, a transaction covered by Rule 145 under the 1933 Act or the resale of securities issued in such a transaction, a registration in which the only stock being registered is Common Stock issuable upon conversion or exchange of debt securities which are also being registered, any registration on any form which does not include substantially the same information as would be required to be received from included in a registration statement covering the sale of the Registrable Securities requested to be included in Shares, or a registration initiated under Section 2.1 or 2.2 of Automaker Registration Rights Agreement) provided, however, that if such Demand Registration equals or exceeds $10,000,000. In no event shall registration statement is not filed by the Company be required to effect more than two (2) within 45 days of receipt of such Stockholder Demand Registrations pursuant to this Section 2.01.
(b) Promptly and declared effective by the Commission with 120 days after the expiration Company's receipt of the seven-Business Day period referred to in Section 2.01(a)(ii)such Stockholder Demand, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with cause such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) Registrable Shares of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed Stockholder to be registered by in accordance with the Company (including for the benefit provisions of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), 2.1 provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective;
(ii) during the period starting with the Company's date of filing of, and ending on the date ninety (90) days immediately following, the effective date of any registration statement pertaining to securities of the Company, which registration was either filed as a result of the exercise by Stockholder of its rights pursuant to Section 2.1 hereof or was subject to Section 2.2 hereof.
Appears in 2 contracts
Sources: Investor Rights Agreement (Commerce One Inc), Investor Rights Agreement (New Commerce One Holding Inc)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject when it is eligible to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))use a Form S-3 registration statement, the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Restricted Shareholders (the requesting Shareholder(swhich shall include for purposes of this Article 2, permitted assignees or successor owners of Covered Securities as set forth in Section 8.1) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty fifty percent (3050%) of the Registrable Non-Restricted Securities then outstanding, outstanding that the Company effect the file a Form S-3 registration under the statement with respect to outstanding Non-Restricted Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the such Restricted Shareholders having an anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed of at least $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof2 million, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (i) within ten (10) days after receipt of the date such request is given, give notice thereof (“Demand Registration Notice”) to all Restricted Shareholders holding Non-Restricted Securities other than the other Initiating Restricted Shareholders, if any, ; and thereupon shall (iii) as soon as practicable, and in any event within forty five sixty (4560) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Shareholders, file a Form S-3 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the sevenNon-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Restricted Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Restricted Shareholders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such ShareholderRestricted Shareholder to the Company within twenty (20) days of the date the Demand Notice is given, or and in each case, subject to the limitations of Section 2.1(b), 2.1(c), and Section 2.3. The Company shall use reasonable best efforts to cause such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed Form S-3 registration statement to be registered declared effective by the Company (including for the benefit of any other Persons not party to this Agreement)SEC as soon as practicable after filing.
(fb) The Notwithstanding the foregoing obligations, if the Company may postpone effecting furnishes to Restricted Shareholders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be 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 otherwise would be required to remain effective, because such action would: (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition; 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 sixty (60) days after the request of the Initiating Shareholders is given; provided, however, that the Company may not invoke this right more than 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 sixty (60) day period other than an Excluded Registration.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 2.1(a) (i) during the period that is thirty ninety (3090) 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected a registration pursuant to Section 2.1(a) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Section 2.1(c) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Restricted Shareholders 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 Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(c).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Autobytel Inc), Shareholders Agreement (Autobytel Inc)
Demand Registration. (a) If at any time following completion prior to eight (8) years from the date of the Initial Public OfferingClosing, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company AER shall receive a written request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (Purchaser who is then holding Shares, Conversion Shares, the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding Warrant and Warrant Shares representing at least thirty percent (30%) 25% of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering Common Stock issuable upon conversion of the Company after the completion Shares or exercise of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, Warrant that AER file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effectcovering the registration of at least $500,000 of shares of Common Stock owned by Purchaser or "affiliates" or "associates" thereof, as expeditiously as possible, and such terms are defined in any event within one hundred twenty the Securities Act (120collectively the "Third Party Shareholders") days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall Common Stock are not be deemed to have occurred unless the registration statement relating thereto (i) has become effective then freely tradable under the Securities Act Act. Purchaser and any Third Party Shareholder shall have ten (ii10) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities to notify AER of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed its intention to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, join in the priority listed below, up request to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidentialregister its shares. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 Not later than ninety (90) days after the effective date ofreceipt by AER of a written request for a demand registration pursuant to this Section 4(a), a Company-initiated registration (other than AER shall file a registration on Form S-8 or any successor or similar forms), provided that statement with the Company is actively employing in good faith commercially reasonable Commission relating to the shares as to which such request for a demand registration relates (the "Requested Shares") and AER shall use its best efforts to cause such the registration statement (which may cover, without limitation, an offering on a delayed or continuous basis open for up to one hundred eighty (180) days pursuant to Commission Rule 415) for the Requested Shares to become effectiveeffective under the Securities Act. AER shall be obligated to effect only three (3) registrations pursuant to this Section 4(a) for Purchaser and the Third Party Shareholders together, and only if the proposed aggregate selling price in any such offering is at least $500,000.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Lindseth Jon A), Securities Purchase Agreement (Aer Energy Resources Inc /Ga)
Demand Registration. (a) If at At any time, and from time following completion to time, after the six month anniversary of the Initial Public OfferingClosing Date, subject holders of then-outstanding Stockholder Shares shall have the right to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), require the Company shall receive a request to effect unlimited registrations on Form S-3, or any successor form then in effect, under the Securities Act (each any such request shall be referred to herein as registration, a “Demand Registration”) ). Upon receipt from a Shareholder Stockholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering Stockholders (the “Follow-On OfferingInitiating Stockholders”), at least twenty percent (20%) of any request for a Demand Registration for Common Stock having a market value of not less than $25,000,000, based on the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion closing price of the Follow-On Offering, all or any portion Common Stock at 4:00 p.m. on the business day prior to the day of the Requesting Shareholder’s Registrable Securities andrequest, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen prompt (10but in any event not later than two (2) business days after receipt of such request) written notice of such request to each Stockholder, and shall include in such Demand Registration all Stockholder Shares with respect to which the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event Company has received written requests for inclusion therein within forty five (45) 30 days after the date delivery of the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) Company’s notice. The Company shall use its commercially reasonable efforts to effect, as expeditiously as possiblefile the registration statement with regard to such Demand Registration with the Securities and Exchange Commission within sixty (60) days after it receives a request therefor, and to cause such registration statement to become effective as soon as practicable thereafter. If requested by the Initiating Stockholders, the Company shall take steps as are required to register such Stockholder Shares in such Demand Registration for sale on a continuous basis under Rule 415 under the Securities Act and keep such registration statement (or any replacement registration statement effected upon the expiration of the initial or any subsequent registration statement) effective for such period as is necessary to complete the sale and distribution of all of the Stockholder Shares pursuant thereto, but in any event within not longer than one hundred twenty (120) days after days. No later than the effective date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all the Company shall furnish (or cause to be furnished) to the extent necessary Company’s transfer agent, from time to permit the disposition (in accordance with the intended methods thereof as aforesaid) time, an opinion of the Registrable Securities so Company’s counsel to facilitate the transfer of the Stockholder Shares in the secondary market, including, but not limited to, the removal of any restrictive legends encumbering such shares. If other securities are included in any Demand Registration that is an underwritten offering, and the managing underwriter for such offering advises the Company that in its opinion the number of securities to be registered, provided thatincluded exceeds the number of securities which can be sold in such offering without adversely affecting the marketability or price thereof, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities will include in such registration all Stockholder Shares requested to be included in such Demand Registration equals or exceeds $10,000,000therein prior to the inclusion of any securities that are not Stockholder Shares. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and If the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities Stockholder Shares requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that securities which in the opinion of such underwriter can be sold without having an adverse effect on adversely affecting the marketability of such offering, including such Stockholder Shares shall be included pro rata among the price at which holders thereof based on the percentage of the outstanding Stockholder Shares then held by each such shares can Stockholder. If other securities are included in any Demand Registration that is not an underwritten offering, all Stockholder Shares included in such Demand Registration shall be sold (prior to the “Maximum Offering Size”), the sale of any of such other securities. The Company shall include in such registrationhave the right to select the investment banker(s) and manager(s) to administer any Demand Registration that is an underwritten offering, in the priority listed below, up subject to the Maximum Offering Size:
(i) first, all Registrable Securities requested approval of the holders of a majority of the Stockholder Shares to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)Demand Registration.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Stockholders' Agreement (BioScrip, Inc.), Merger Agreement (BioScrip, Inc.)
Demand Registration. (a) If During the Demand Period, the Eligible Investors may at any time following completion make a written request for registration of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and under the securities or blue sky laws of any jurisdiction reasonably designated by such Investors (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholdercollectively, the effectiveness of the registration statement“Demanding Holders”); provided, in each case covering:
that (i) subject the Company will not be required to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested effect any registration under pursuant to this Section 2.01, and
3 unless the Minimum Offering Threshold is met; (ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid3(c) of the Registrable Securities so to be registered, provided thatbelow, the Company shall will not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations three registrations at the request of the Investors pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii3(a), (iii) the Company will notify all Registering Shareholders of not be required to effect such registration within the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to period beginning on the effective date of the a registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, be filed by providing a notice to the Company revoking such request. Notwithstanding clause or on its behalf covering a firm commitment underwritten public offering and ending on the expiration of any lock-up period (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed one hundred eighty (180) days following the Maximum Offering Sizeeffective date of such registration statement, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or subject to certain limited extensions in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(iiaccordance with applicable NASD rules and regulations) second, any securities proposed to be registered required by the underwriters, (iv) the Company (including for will not be required to effect any such registration if the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting has effected a registration pursuant to this Section 2.01 on two occasions during any 3 within the twelve (12) month period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months immediately prior to such registration request and (which period may not be extended or renewed), v) if the Company furnishes shall furnish to the Requesting Shareholder such holders a certificate signed by the Company’s chief executive officer Chairman of the Board of Directors of the Company stating that (i) effecting in good faith judgment of the registration Board of Directors it would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving be seriously detrimental to the Company or (ii) effecting its stockholders for a registration statement to be filed in the registration would require near future, then the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration Company’s obligation pursuant to Section 2.01 during 3(a) hereof to file a registration statement with the Commission relating to the Registrable Securities as to which such request for a Demand Registration relates shall be deferred for a 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 not to exceed ninety (90) days after from the effective date ofof receipt of the written request; provided, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms)however, provided that the Company is actively employing may not utilize this right more than once in good faith commercially reasonable efforts to cause such registration statement to become effectiveany twelve (12) month period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Republic Companies Group, Inc.), Registration Rights Agreement (Republic Companies Group, Inc.)
Demand Registration. (a) If at any time following completion From the later of (i) the date on which the Company is eligible to file registration statements on Form S-3; or (ii) one year after the date of this Agreement (the "Registrable Date"), until the third anniversary of the Initial Public OfferingRegistrable Date, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))this Agreement, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) 50% of the then outstanding shares of the Registrable Securities then outstanding, that the Company effect the may request one (1) registration under the Securities Act of all or part of their Registrable Securities (i) for the first Public Offering of a "Demand Registration"), provided, however, that the Company after the completion of the Initial Public Offering (the “Followmust then be eligible to file registration statements on Form S-3 or any similar short-On Offering”), at least form registration. Within twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register request pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that2.1, the Company shall not be obligated give written notice of such request to effect a Demand Registration unless all holders of Registrable Securities and shall include in such registration all Registrable Securities with respect to which the aggregate proceeds expected to be Company has received from the sale written requests for inclusion within fifteen (15) days after delivery of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01Company's notice.
(b) Promptly after The Company shall include in any Demand Registration any Registrable Securities; provided, however, if the expiration Demand Registration is an underwritten public offering and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included exceeds the number of securities which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the seven-Business Day period referred to in Section 2.01(a)(ii)Registrable Securities initially requesting registration, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the shall include in such registration only that number of shares of Registrable Securities requested to be included therein. At any time prior to which in the effective date opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro-rata among the respective holders thereof on the basis of the registration statement relating to amount of Registrable Securities owned by each such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestholder.
(c) The Company shall be liable may postpone for and shall pay all up to ninety (90) days the filing or the effectiveness of a registration statement for a Demand Registration Expenses if the Company reasonably believes that such Demand Registration would have an adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage in connection with any Demand Registration, regardless acquisition of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described assets (other than in the last sentence ordinary course of Section 2.01(b)business) or any merger, consolidation, reorganization, tender offer or other significant transaction.
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that The party originally requesting a Demand Registration shall have the right to select the managing underwriters to administer the offering anticipated by any Demand Registration; provided, however, that such managing underwriters are recognized nationally and are approved by the Company, which approval shall not be deemed to have occurred ifunreasonably withheld, after such registration statement becomes effectiveconditioned or delayed. Notwithstanding the foregoing, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that if the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”)participate in any Demand Registration, the Company shall include in such registration, in have the priority listed below, up sole and exclusive right to select the Maximum Offering Size:
(iunderwriter(s) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for administer the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)offering.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Bingham Financial Services Corp), Registration Rights Agreement (Bingham Financial Services Corp)
Demand Registration. (a) If at any time following completion From and after the date that is six (6) months after the date of the Initial Public Offeringthis Agreement, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), in case the Company shall receive from the Investor a written request or requests that the Company effect a Registration (each such request shall be referred to herein as a “Demand Registration”) from ), which if the Company is a Shareholder or group WKSI as of Shareholders (the requesting Shareholder(s) filing date thereof, shall be referred an automatic Shelf Registration Statement, and any related qualification or compliance, with respect to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) all or any part of the Registrable Securities owned by the Investor, then outstanding, that the Company effect shall file and use its best efforts (i) to cause the registration Registration Statement covering such Registrable Securities to be declared effective under the Securities Act (iunless it becomes effective automatically upon filing) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days possible after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Actfiling thereof, and (ii) use its commercially reasonable efforts to effect, keep such Registration Statement continuously effective under the Securities Act until such date as expeditiously as possible, and in any event within one hundred twenty is the earlier of (120x) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), on which all Registrable Securities for covered by such Registration Statement have been sold or (y) the date on which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so may be sold without any restriction pursuant to be registered, Rule 144. (b) Notwithstanding anything to the contrary provided thatabove, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in any such Demand Registration equals Registration, qualification or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations compliance pursuant to this Section 2.01.
2.2: (b1) Promptly after if the expiration aggregate anticipated price to the public of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of any Registrable Securities requested which the Investor proposes to be included therein. At any time prior to the effective date of the registration statement relating sell pursuant to such registration, together with the Requesting Shareholder may revoke aggregate anticipated price to the public of any other securities of the Company entitled to inclusion in such requestregistration, without liabilityis less than US$50,000,000 (or the equivalent thereof in other currencies), unless such Registration covers all remaining Registrable Securities; (2) if the Company shall furnish to the Investor a certificate certifying the same signed by providing a notice the Chief Executive Officer stating that in the good faith judgment of the Board, it would be materially detrimental to the Company revoking and its shareholders for such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered registration to be a Demand Registration unless (i) effected at such revocation arose out of the fault of the Company (time, in which case event the Company shall be obligated have the right to pay all Registration Expenses in connection with such revoked request) or (ii) defer the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) filing of the definition of the term Registration ExpensesStatement no more than once during any twelve (12) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective month period for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 more than ninety (90) days after receipt of the effective request of the Investor under this Section 2.2(a); provided, however, that such period shall terminate if the Company registers any of its other Shares during such period; or (3) if the Company has, within the six (6) month period preceding the date ofof such request, already effected a Company-initiated registration (under the Securities Act other than a registration on Form S-8 from which the Registrable Securities of the Investor have been excluded (with respect to all or any successor or similar formsportion of the Registrable Securities the Investor requested be included in such registration) pursuant to Section 2.1(b), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Naspers LTD), Share Purchase Agreement (Naspers LTD)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject 2.1 Registration on Form F-3 or Form S-3. Subject to the terms of this Agreement, at any “lock-up” agreement entered into with one time after the first (1st) anniversary of the effective date of a Qualified IPO of the Company, Holders holding fifteen percent (15%) or more underwriters in voting power of the Registrable Securities may request in writing (unless waived a “Registration Request”) that the Company file a Registration Statement on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the United States), so long as the Company is entitled to use such a form, including, without limitation, any registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or delayed basis by the Initiating Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission, for a public offering of all or part of their Registrable Securities. Upon receipt of such underwriter(s))a Registration Request, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering promptly give written notice of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts proposed Registration to all other Holders and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 of the receipt of such request, cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the effective date ofCompany’s delivery of written notice, a Company-initiated registration (other than a registration on Form S-8 or to be Registered and qualified for sale and distribution in such jurisdictions as the Initiating Holders may reasonably request. The Holders may at any successor or similar forms)time, provided and from time to time, require the Company to effect the Registration of Registrable Securities under this Section 2.1 so long as the proposed maximum aggregate offering price for each such Registration exceeds US$500,000; provided, however, that the Company is actively employing Holders shall not exercise the right under this Section 2.1 more than twice in good faith commercially reasonable efforts any twelve (12) month period (it being the understanding of the Parties that a Registration Request given under this Section 2.1 shall be deemed to cause have been effected for purposes of the foregoing even if subsequently withdrawn by Holders of Registrable Securities included in such registration statement to become effectiveRegistration Request).
Appears in 2 contracts
Sources: Investor Rights Agreement (China Mass Media International Advertising Corp.), Investor Rights Agreement (China Mass Media International Advertising Corp.)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company ADS shall receive from any Major Stockholder or Major Stockholders a written request (each such request shall be referred or requests that ADS effect a registration on Form S-3 with respect to herein as a “Demand Registration”) from a Shareholder all or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) part of the Registrable Securities owned by such Major Stockholder or Major Stockholders (or if Form S-3 is not permitted for such registration, then outstandingpursuant to a Form S-1 or any successor or similar registration statement (“Form S-1”)), that the Company effect the including by means of a shelf registration pursuant to rule 415 under the Securities Act (i) for Act, and ADS is then eligible to register the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”)ADS Common Stock on Form S-3 or Form S-1, at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereofas applicable, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen ADS shall:
a) Promptly (10) and in any event within 5 business days after receipt of such Demand Registration to request) give written notice of the other Shareholders, if anyproposed registration, and thereupon shall (iany related qualification or compliance, to all other Major Stockholders; and
b) as soon as practicable, effect such registration and in any event within forty five (45) days after all such qualifications and compliances as may be so requested and as would permit or facilitate the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, sale and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness distribution of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all or such portion of such Major Stockholder’s or Major Stockholders’ Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth as are specified in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholdersrequest, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after all or such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) portion of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting Major Stockholder or Major Stockholders joining in such request as are specified in a written request given within 15 days after receipt of such written notice from ADS; provided, however, that no such registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months 2.1 shall be required: (which period may not be extended or renewed), if the Company furnishes 1) to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that become effective prior to one hundred eighty (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30180) 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 following the effective date of, a Companyof an ADS-initiated registration statement which covers any ADS Common Stock (other than a registration on Form S-8 statement filed solely to qualify an ADS employee benefit plan or any successor or similar formsbusiness combination pursuant to Rule 145), ; provided that the Company ADS is actively employing reasonable efforts in good faith commercially reasonable efforts to cause such registration statement to become effective; (2) unless the Major Stockholders propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (before deduction of any underwriters’ discounts or commissions) of at least $10,000,000 with respect to a Registration Statement on Form S-3 or at least $50,000,000 with respect to a Registration Statement on Form S-1; and (3) if, within the twelve (12) month period preceding the date of such request, ADS has already effected two registrations for the Major Stockholders pursuant to this Section 2.1.
c) Subject to the foregoing, ADS shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable (and in any event within 45 days) after receipt of the request or requests of the Major Stockholders.
d) Notwithstanding the provisions of Section 2.1 (a)-(c) above, if any registration requested pursuant to this Section 2.1 is proposed to be effected on Form S-3 and is in connection with an underwritten offering, and if the managing underwriter shall advise ADS in writing that, in its opinion, it is of material importance to the success of such proposed offering to file a Registration Statement on Form S-1 or to include in such Registration Statement information not requested to be included pursuant to Form S-3, then ADS will file a Registration Statement on Form S-1 or supplement Form S-3 as reasonably requested by such managing underwriter.
e) Notwithstanding the provisions of Section 2.1(a)-(d) above, if ADS furnishes to the Major Stockholders requesting a registration pursuant to this Section 2 a certificate signed by ADS’ chief executive officer stating that in the good faith judgment of ADS’s Board of Directors (after consultation with legal counsel) it would be materially detrimental to ADS and its Stockholders for such Registration Statement to be filed, become effective or continue to be used, including a shelf registration pursuant to Rule 415 under the Securities Act, because such action would (i) materially interfere with ADS’s ability to effect a material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction involving ADS; (ii) require premature disclosure of material, non-public information that ADS has a bona fide business purpose for preserving as confidential (which disclosure would be required to be made in any Registration Statement so that such Registration Statement would not be materially misleading and would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement); or (iii) render ADS unable to comply with requirements under the Securities Act or Exchange Act, then ADS may, upon giving prompt written notice of such action to the Major Stockholders participating in such registration, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement; provided that if ADS exercises its rights under this Section 2.1(e), the applicable time period during which the Registration Statement is to remain effective shall be extended by a period of time equal to the duration of the period during which such Registration Statement is suspended hereunder; provided, further that ADS shall not be permitted to do so (a) more than once during any consecutive twelve (12) month period, or (b) for a period exceeding forty-five (45) days on any one occasion. In the event ADS exercises its rights under the preceding sentence, such Major Stockholders agree to suspend, promptly upon their receipt of the notice referred to above, their use of any prospectus relating to such registration in connection with any sale or offer to sell Registrable Securities for the period during which suspension by ADS is permitted hereby. ADS shall promptly notify such Major Stockholders of the expiration of any period during which it exercised its rights under this Section 2.1. ADS agrees that, in the event it exercises its right ▇▇▇▇▇▇ this Section 2.1, it shall, within 30 days following such Major Stockholders’ receipt of the notice of suspension, update the suspended statement as may be necessary to permit the Major Stockholders to resume use thereof in connection with the offer and sale of their Registrable Securities in accordance with applicable law.
Appears in 2 contracts
Sources: Registration Rights Agreement (Advanced Drainage Systems, Inc.), Registration Rights Agreement (Advanced Drainage Systems, Inc.)
Demand Registration. If the Investor is unable to sell shares of ------------------- Common Stork within eighteen (a18) If at any time following completion months after the end of the Initial Public OfferingRestriction Period pursuant to Rule 144(k) (or a successor rule) under the Securities Act or on a Piggyback Registration Statement, subject the Investor shall have the right to require the Company to file one registration statement under the Securities Act on a Form S-3, provided such registration form is available to the terms Company, to register shares of Common Stock acquired under this Agreement for sale in a public offering that is not to be made on a continuous or delayed basis pursuant to Rule 415 (or a successor rule) under the Securities Act and that is expected to yield net proceeds to the Investor of at least Five Million Dollars ($5,000,000), as specified in a written notice from the Investor to the Company.
(i) Following the Company's receipt of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)notice under this Section 8(b), the Company shall receive a request (each such request shall be referred use its best efforts to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement register under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously soon as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its viewreasonably practicable, the number of shares of Registrable Securities requested to be included Common Stock specified by the Investor in such registration notice (including any securities or such lesser number as the managing underwriter(s) in such offering believes will not unduly jeopardize the success of the offering); provided, however, that the Company proposes may delay the filing of the registration statement for as long as
(A) the request for registration pursuant to this Section 8(b) would require the Company to include in the registration statement on the filing date or on the expected effective date audited financial statements which are not yet required to be included filed with the Commission under the Exchange Act; or
(B) the Company's board of directors reasonably determines that are not Registrable Securitiesthe disclosure required in the registration statement or the pricing of the offering would adversely affect the Company or its ability to engage in a planned registered public offering or in any other planned activity.
(ii) exceeds In the largest number of shares event that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”Investor makes a demand for registration as described in this Section 8(b), the Company shall include in such registration, have the right to register other shares of Common Stock in the priority listed registration statement; provided, however, that such shares shall not be included to the extent provided -------- ------- in Section 8(f) below, up if applicable, and in all other situations, such shares (other than the Original Registration Stock) shall not be included to the Maximum Offering Size:
(i) first, all Registrable Securities requested extent that the Investor determines in good faith that the inclusion of such shares will interfere with the successful marketing of the Investor's shares to be included in therein; provided, further, that, if the number of shares to be so -------- ------- included exceeds the number of the Investor's shares included therein, such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed deemed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to Section 8(a) hereof.
(iii) The managing underwriter(s) for any underwritten public offering pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed8(b), if shall be mutually acceptable to the Company furnishes to and the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveInvestor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Genvec Inc), Stock Purchase Agreement (Genvec Inc)
Demand Registration. (a) If at any time following completion prior to the fifth anniversary of the Initial Public Offering, subject to the terms date of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), this Agreement the Company shall receive from a Purchaser a written request (each such request shall be referred to herein as a “"Demand Registration”Request") from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect register on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor form of registration under the Securities Act, or, if available, on Form S-3 or any successor form of registration under the Securities Act (ior if such form is not available, any registration statement form then available to the Company) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereofSecurities, then the Company shall (a) promptly given written notice to the other Purchaser of the Demand request and (b) prepare and file with the Commission as promptly soon as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen practicable, but in no event later than forty-five (1045) days after receipt of such Demand Request, a registration statement (a "Demand Registration Statement") to effect such registration. The Company shall use its best efforts to cause the Registrable Securities specified in such Demand Request, together with all of such portion of the Registrable Securities of the other ShareholdersPurchaser joining in such request as are specified in a written request within 10 days after receipt of such written notice from the Company, if any(collectively, and thereupon shall (ithe "Demand Registrable Securities") to become or be declared effective as soon as practicable. The Company shall provide copies of all correspondence to, and in from, the Commission within twenty-four (24) hours after receipt, or delivery, as the case may be, of any event within forty five such correspondence. Each such Demand Request shall: (45a) days after include an initial request to register Registrable Securities having an aggregate offering value of not less than the date lesser of all of the Registrable Securities then owned by the Purchaser or $5 million (or Registrable Securities having an aggregate offering value of not less than $5 million when combined with a concurrent Demand Request from the other Purchaser); (b) specify the number of Demand Registrable Securities intended to be offered and sold by the Purchaser pursuant thereto; (c) express the present intention of the Purchaser to offer or cause the offering of such Demand Registrable Securities pursuant to such Demand Registration is given Statement, (d) describe the nature or method of distribution of such Demand Registrable Securities pursuant to such Demand Registration Statement (including, in particular, whether the Purchaser plans to effect such distribution by means of an underwritten offering); (e) identify the Requesting Shareholderproposed Demand Managing Underwriter, file a registration statement under if any; and (f) contain the undertaking of the Purchaser to provide all such information and materials and take all such actions as may be required in order to permit the Company to comply with all applicable requirements of the Securities Act, the Exchange Act and (ii) use its commercially reasonable efforts to effect, as expeditiously as possiblethe rules and Regulations of the Commission thereunder, and in to obtain any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness desired acceleration of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestStatement.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Chalone Wine Group LTD), Registration Rights Agreement (Domaines Barons De Rothschild /Lafite/)
Demand Registration. (a) If at At any time following completion the date of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) this Agreement and upon written notice from a Shareholder Holder or group Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (without giving effect to any limitation on exercise or conversion) in the manner set forth in Section 11(h) hereof requesting that Company effect the registration under the Securities Act of any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion all of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, held by such Holder as described in each case, specifying Section 2(b) (which notice shall specify the intended method or methods of disposition thereofof such Registrable Securities), then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable best efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholdermanner set forth in Section 5, the effectiveness registration under the Securities Act of such Registrable Securities for disposition in accordance with the registration statement, intended method or methods of disposition stated in each case coveringsuch request; provided that:
(i) subject if, prior to the restrictions set forth in Sections 2.01(ereceipt of a registration request pursuant to this Section 2(a), Company had commenced a financing plan and held or identified a date to hold a formal “all Registrable Securities for which hands” meeting with outside advisors, including an underwriter if such financing plan is an underwritten offering, and, in the Requesting Shareholder has good faith business judgment of Company’s underwriter (or outside advisors, if no underwriter), a registration at the time and on the terms requested could materially and adversely affect or interfere with such financing plan of Company or its subsidiaries (a “Transaction Blackout”), Company shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) sixty (60) days after the termination of such offering; provided that Company shall only be permitted to delay a requested registration under this Section 2.012(a), andwhether in reliance on this subsection (i) or on subsection (ii) below, twice during the term of this Agreement.
(ii) subject to the restrictions set forth in Sections 2.01(e)if, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register while a registration request is pending pursuant to this Section 2.012(a), by request received by Company has determined in good faith that (A) the filing of a registration statement could jeopardize or delay any contemplated material transaction other than a financing plan involving Company within seven Business Days after such Shareholders receive or would require the Company’s notice disclosure of the Demand Registration, all material information that Company had a bona fide business purpose for preserving as confidential; or (B) Company then is unable to comply with SEC requirements applicable to the extent necessary requested registration (notwithstanding its reasonable best efforts to permit so comply), Company shall not be required to effect a registration pursuant to this Section 2(a) until the disposition earlier of (in accordance with A) the intended methods thereof as aforesaid) of date upon which such contemplated transaction is completed or abandoned or such material information is otherwise disclosed to the Registrable Securities so public or ceases to be registeredmaterial or Company reasonably is able to so comply with applicable SEC requirements, as the case may be, and (B) thirty (30) days after Company makes such good-faith determination; provided thatthat Company shall only be permitted to delay a requested registration under this Section 2(a), whether in reliance on this subsection (ii) or on subsection (i) above, twice during the term of this Agreement.
(iii) Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect file more than two (2) Demand Registrations registration statements under the Securities Act relating to a registration request pursuant to this Section 2.012(a) and shall not be obligated in any event if such a registration request is for a number of Registrable Securities which have an aggregate market value less than $1 million. If such a request shall be for an underwritten offering, such a request must be for a number of Registrable Securities which have an aggregate market value of at least $5 million.
(b) Promptly after Notwithstanding any other provision of this Agreement to the expiration contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the seven-Business Day period referred requesting Holder based upon material adverse information relating to in Section 2.01(a)(ii)Company that is (x) different from the information known to the Holder or Holders requesting registration at the time of their request for registration, or (y) promptly disclosed by Company to the Company will notify all Registering Shareholders Holder at the time of the identities their request for registration; (B) if, when effective, it includes fewer than ninety (90%) percent of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to which were the effective date subject matter of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause ; (dC) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) if after it has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, less than ninety (90%) percent of the Registrable Securities requested to be registered can be completely distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Company shall have the right to designate the underwriter or underwriters, including the lead managing underwriter of such underwritten offering, subject to the reasonable approval of the Holders.
(d) Holders other than the Holder initiating the demand pursuant to Section 2(a) and holders of other registrable securities with the right to participate in a Company registration statement shall have the right to include their shares of Registrable Securities or other registrable securities, as the case may be, in any registration pursuant to Section 2(a). In connection with those registrations in which multiple Holders or holders of other registrable securities with the right to participate in such registration (“Piggy-back Rights Holders”) participate, in the event the facilitating broker/dealer or, in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the number of shares to be sold, the number of shares to be included in the sale or underwriting and registration shall be allocated pro rata among the Holders and the holders seeking registration pursuant to piggy-back registration rights otherwise granted by Company on the basis of the estimated proceeds from the sale of the securities covered by such registration.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information have the right to cause the registration of additional securities for sale for the account of Company in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares any registration of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration Holder pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (2(a) which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating involves an underwritten offering; provided that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated have the right to effect, or cause the registration of such additional securities if such Holder is advised in writing (with a copy to take any action to effect, any registration Company) by the lead managing underwriter designated pursuant to Section 2.01 during the period that is thirty (302(c) days before the Companythat, in such firm’s good faith estimate opinion, registration of such securities in addition to those securities included pursuant to Sections 2(a)-(d) hereof would materially adversely affect the offering and sale 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause Registrable Securities then contemplated by such registration statement to become effectiveHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement (RS Properties I LLC), Registration Rights Agreement (Sands Brothers Venture Capital Ii LLLC)
Demand Registration. (a) If at any time following completion From and after the second anniversary of the Initial Public OfferingClosing Date, Holders of at least 50% of the outstanding Transfer Restricted Securities, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))Section 3(e) below, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s"INITIATING HOLDERS") shall be referred to herein as the “Requesting Shareholder”)may request, holding at least thirty percent (30%) of the Registrable Securities then outstandingin writing, that the Company effect the registration under the Securities Act (i) for the first Public Offering of all or part of their Transfer Restricted Securities. Within 10 days after receipt of any such request, the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request will give notice of such Demand Registration at least fifteen request to all other Holders of Transfer Restricted Securities (10) days after receipt of such Demand Registration to "OTHER HOLDERS"). Thereafter, the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) Company will use its all commercially reasonable efforts to effecteffect the registration on an appropriate form under the Securities Act and will include in such registration, as expeditiously as possiblesubject to Section 3(e) below, all Transfer Restricted Securities held by the Initiating Holders and in any event Other Holders with respect to which the Company has received written requests for inclusion therein within one hundred twenty (120) 15 days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness receipt of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered Company's notice. All registrations initiated by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register an Initiating Holder pursuant to this Section 2.013(a) are referred to herein as "DEMAND REGISTRATIONS." Notwithstanding anything herein to the contrary, by request received by the Company within seven Business Days after need not effect any requested Demand Registration unless the expected gross proceeds of such Shareholders receive the Company’s notice of the Demand Registration, all registration exceed $15,000,000.
(b) Notwithstanding anything in Section 3(a) above to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatcontrary, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required take any action to effect more than two (2) Demand Registrations any such registration pursuant to this Section 2.01.
(b3(a) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Sizeabove:
(i) firstIn any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, all Registrable Securities requested unless the Company is already subject to be included service in such registration jurisdiction and except as may be required by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); andAct;
(ii) second, any securities proposed to be registered by During the Company period starting with the date sixty (including for the benefit of any other Persons not party to this Agreement).
(f60) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes prior to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate of the 's estimated date of filing of, and ending on a date that is ninety one hundred twenty (90120) days after immediately following the effective date of, a Company-initiated any registration statement pertaining to securities of the Company (other than a registration on Form S-8 of securities in a Rule 145 transaction or any successor or similar formswith respect to an employee benefit plan), provided that the Company is actively employing in good faith commercially all reasonable efforts effects to cause such registration statement to become effective;
(iii) After the Company has effected two (2) such registrations pursuant to Section 3(a), and such registrations have been declared or ordered effective;
(iv) If the Company shall furnish to such Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed in the near future, then the Company's obligation to use its commercially reasonable efforts to comply under Section 3(a) shall be deferred for a period not to exceed one hundred eighty (180) days from the date of receipt of written request from an Initiating Holder; provided that the Company may not exercise this deferral right more than once per twelve (12) month period.
(c) A registration requested pursuant to Section 3(a) shall not be deemed to have been effected (i) unless a registration statement with respect thereto has been declared effective by the Commission, (ii) if after it has become effective, such registration is interfered with by any stop order, injunction or the order or requirement of the Commission or other governmental agency or court for any reason, and, as a result thereof, the Transfer Restricted Securities covered thereby have not been sold or (iii) the registration statement does not remain effective for a period expiring the earlier of 90 days after the effective date thereof or the completion of the distribution of the Transfer Restricted Securities included in such registration statement. The Holders of the Transfer Restricted Securities shall be permitted to withdraw all or any part of the Transfer Restricted Securities from a Demand Registration at any time prior to the effective date of such Demand Registration; provided that in the event of, and concurrently with such withdrawal, the Holders responsible for such Demand Registration shall either (i) pay or reimburse the Company for all fees and expenses (including counsel fees and expense) incurred by them and the Company prior to such withdrawal or (ii) agree to forfeit one of its Demand Registration rights hereunder.
(d) In the event that a registration pursuant to Section 3(a) is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the notice given pursuant to Section 3(a). In such event, the right of any Holder to registration pursuant to Section 3(a) shall be conditioned upon such Holder's participation in the underwriting arrangements required by this Section 3, and the inclusion of such Holder's Transfer Restricted Securities in the underwriting to the extent requested shall be limited to the extent provided herein. The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by the Initiating Holder, but subject to the Company's reasonable approval.
(e) If the Company includes in any underwritten Demand Registration any securities which are not Transfer Restricted Securities and the managing underwriters advise the Company in writing that in their opinion the number of Transfer Restricted Securities proposed to be included exceeds the number of Transfer Restricted Securities and other securities which can be sold in such offering, the Company will include in such registration (i) first, the Transfer Restricted Securities requested to be included which, in the opinion of such underwriters, can be sold, by the Initiating Holders initiating the Demand Registration, (ii) second, the Transfer Restricted Securities proposed to be included in such registration by the Other Holders exercising their registration rights hereunder, pro rata based upon the total number of Transfer Restricted Securities which such Other Holders propose to include in such registration and (iii) third, the securities proposed to be included in such registration by any other holders as determined by the Company and the managing underwriters.
Appears in 2 contracts
Sources: Purchase Agreement (Citigroup Inc), Registration Rights Agreement (Citigroup Inc)
Demand Registration. (a) If at any time following completion of after the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))date hereof, the Company shall receive a written request (each such request shall be referred to herein as from the Stockholder that the Company file a “Demand Registration”) from a Shareholder or group registration statement under the Act covering the registration of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty twenty five percent (3025%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any a lesser percentage percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,0005,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall shall:
(i) effect as soon as practicable, and in any event within forty five (45) 90 days after receipt of such request, the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness Act of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by Stockholder request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder Stockholder 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 section 2.01, subsection 1.2(a). The underwriter or underwriters will be selected by the Stockholder and shall be reasonably acceptable to the Company. The Stockholder (together with the Company as provided in subsection 1.4(e)) shall include enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)underwriting.
(fc) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.01 during 1.2:
(i) if more than one registration has been effected pursuant to this Section 1.2 in any preceding twelve (12) month period and such registration has been declared or ordered effective, or more than two such registrations have been declared or ordered effective overall;
(ii) During the period that is starting with the date thirty (30) days before prior to the Company’s '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 (other than a registration on Form S-8 or any successor or similar forms), subject to Section 1.3 hereof; provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective;
(iii) If the Stockholder proposes to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.10 below; or
(iv) if the Company shall furnish to the Stockholder 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 Stockholder; provided that such right to delay a request, whether pursuant to this Section 1.2 or Section 1.10, shall be exercised by the Company not more than once in any twelve (12) month period.
Appears in 2 contracts
Sources: Registration and Stockholder Rights Agreement (Ixys Corp /De/), Stockholders Agreement (Abb Asea Brown Boveri LTD)
Demand Registration. (a) If at any time following completion Buyer, on its own behalf and on behalf of the Initial Public Offeringother Holders, subject may make up to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the three written requests for registration under the Securities Act of all or any part of the Registrable Securities held by the Holders (each, a "Demand Registration"); provided that (i) for Buyer may not request a Demand Registration before the first Public Offering anniversary of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”)Closing Date, at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) no Demand Registration may be requested within 180 days after the completion preceding request for a Demand Registration, and (iii) each Demand Registration must be (x) in respect of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, with a fair market value of at least $25,000,000 or (y) in each case, specifying respect of all remaining Registrable Securities and have a fair market value of at least $5,000,000. Such request will specify the aggregate number of shares of Registrable Securities proposed to be sold and will also specify the intended method of disposition thereof. A registration will not count as a Demand Registration until it has become effective. Should a Demand Registration not become effective due to the failure of a Holder to perform its obligations under this Exhibit B or the inability of the requesting Holders to reach agreement with the Underwriters for the proposed sale on price or other customary terms for such transaction, or in the event the requesting Holders withdraw or do not pursue the request for the Demand Registration (in each of the foregoing cases, provided that at such time the Corporation is in compliance in all material respects with its obligations under this Exhibit B), then such Demand Registration shall be deemed to have been effected (provided that if the Demand Registration does not become effective because of a material adverse change in the condition (financial or otherwise), business, assets or results of operations of the Corporation and its Subsidiaries taken as a whole that occurs subsequent to the date of the written request made by the requesting Holders, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless been effected).
(b) In the event that the requesting Holders withdraw or do not pursue a request for a Demand Registration and, pursuant to Section 2.01(a) hereof, such Demand Registration is deemed to have been effected, the Holders may reacquire such Demand Registration (such that the withdrawal or failure to pursue a request will not count as a Demand Registration hereunder) if the Holders reimburse the Corporation for any and all Registration Expenses incurred by the Corporation in connection with such request for a Demand Registration; provided that the right to reacquire a Demand Registration may be exercised a maximum of two times.
(c) If the Selling Holders so elect, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering. A majority in interest of the Selling Holders shall have the right to select the managing Underwriters and any additional investment bankers and managers to be used in connection with such offering, subject to the Corporation's approval, which approval shall not be unreasonably withheld.
(d) The Selling Holders will inform the Corporation of the time and manner of any disposition of Registrable Securities, and agree to reasonably cooperate with the Corporation in effecting the disposition of the Registrable Securities in a manner that does not unreasonably disrupt the public trading market for the Common Stock.
(e) The Corporation will have the right to preempt any Demand Registration with a primary registration statement relating thereto by delivering written notice (iwithin five business days after the Corporation has received a request for such Demand Registration) of such intention to Buyer indicating that the Corporation has become effective under identified a specific business need and use for the Securities Act proceeds of the sale of such securities and (ii) has remained effective for the Corporation shall use commercially reasonable efforts to effect a primary registration within 60 days of such notice. In the ensuing primary registration, the Holders will have such piggyback registration rights as are set forth in Section 2.02 hereof. Upon the Corporation's preemption of a requested Demand Registration, such requested registration will not count as a Demand Registration; provided that a Demand Registration will not be deemed preempted if the Holders are permitted to sell all requested securities in connection with the ensuing primary offering by exercising their piggyback registration rights as set forth in Section 2.02. The Corporation may exercise the right to preempt only twice in any 360-day period; provided, that during any 360-day period there shall be a period of at least 180 120 consecutive days (or such shorter period in during which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that Selling Holders may effect a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)Registration.
(f) The Company may postpone effecting a registration pursuant Subject to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition2.03, the Company shall not Corporation will be obligated entitled to effect, include in a Demand Registration shares of Common Stock for its own account or to take any action to effect, any registration pursuant to Section 2.01 during for the period that is thirty (30) days before the Company’s good faith estimate account 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectivePersons.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Scott Walter Jr), Stock Purchase Agreement (RCN Corp /De/)
Demand Registration. (a) If at At any time following completion after the expiration of the Initial Public OfferingLock-Up Period, subject to the terms of any “lock-up” agreement entered into with one or more underwriters Buyer Parties (unless waived the “Requesting Parties”) then holding a majority of the Registrable Securities then held by such underwriter(s)), all Buyer Parties may request in writing (a “Demand Request”) that the Company shall receive effect a request registration (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group under the 1933 Act of Shareholders (the requesting Shareholder(s) Registrable Securities held by such Buyer Parties. The Demand Request shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of in writing and shall specify the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts to be sold and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof. Upon receipt of a Demand Request, then the Company shall as promptly as practicable following the date of receipt by deliver within five Business Days a written notice (a “Demand Notice”) to each Buyer Party that did not make such Demand Request stating that the Company intends to comply with a Demand Request and informing each such Buyer Party of such request give notice of its right to include Registrable Securities in such Demand Registration at least fifteen (10) days Registration. Within five Business Days after receipt of a Demand Notice, each Buyer Party who received such Demand Registration Notice shall have the right to request in writing that the other Shareholders, if any, and thereupon Company include all or a specific portion of the Registrable Securities held by such Buyer Party in such Demand Registration. The Company shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and including (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(eSection 5.1(c), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included therein by the Requesting Parties and any other Buyer Party who validly exercises its rights under this Section5.1(a) on the appropriate form as promptly as practicable (but no later than 90 days after the date the Demand Request is delivered in the case of a Form S-1 and 60 days after the date the Demand Request is delivered in the case of a Form S-3) and use its commercially reasonable efforts to cause such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed statement to be registered declared effective by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed)SEC as soon as practicable thereafter; provided, if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating however, that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.01 5.1:
(i) unless the Registrable Securities requested to be registered pursuant to such request (x) have an anticipated aggregate public offering price (before any underwriting discounts and commissions) of at least $25,000,000 or (y) represent at least 15% of the total shares of Common Stock then outstanding that are not Registrable Securities;
(ii) within 120 days of any other Demand Registration or a Shelf Underwritten Offering;
(iii) within 120 days of a Piggyback Offering in which all Buyer Parties were given the right to include Registrable Securities to the extent required under this Agreement and at least 80% of the Registrable Securities requested by such Buyer Parties to be included in such Piggyback Offering were included;
(iv) during the period that is thirty (30) starting with the date 30 days before prior to the Company’s good faith estimate of the date of filing of, and ending on the date 120 days immediately following a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms)Piggyback Offering, provided that during the 30-day period prior to such filing the Company is actively employing in good faith commercially all reasonable efforts to cause consummate such Piggyback Offering; provided, further, that the Company may only delay an offering pursuant to this subsection (a)(iv) for a period of not more than 120 days if a filing of any other registration statement to become effectiveis not made within that period and the Company may only exercise this right once in any 12-month period; or
(v) during any Suspension Period.
Appears in 2 contracts
Sources: Stockholders' Agreement (Professional Diversity Network, Inc.), Stock Purchase Agreement (Professional Diversity Network, Inc.)
Demand Registration. (a) If Subject to the terms and conditions of this Agreement, including Sections 2(c), 2(d) and 2(g), if at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive receives a written request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, any Investor that the Company effect the registration register under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereofSecurities, then the Company shall file, as promptly as reasonably practicable following but no later than the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholdersapplicable Filing Deadline, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities ActAct covering all Registrable Securities that such Investor requests to be registered. For the avoidance of doubt, CoyCo 1 and CoyCo 2 may make such a request for registration jointly, in which case each of CoyCo 1 and CoyCo 2, acting together, will be treated as the Investor requesting registration. The registration statement shall be on Form S-3 (iiexcept if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and, if the Company is a WKSI as of the Filing Deadline, shall be an Automatic Shelf Registration Statement. The Company shall use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of cause the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated declared effective or otherwise to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act as soon as reasonably practicable but, in any event, no later than the Effectiveness Deadline, and shall use its commercially reasonable efforts to keep the registration statement continuously effective under the Securities Act until the earlier of (ii1) has remained effective for a period of at least 180 days (or the date on which such shorter period Investor notifies the Company in which all writing that the Registrable Securities of the Registering Shareholders included in such registration statement have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after or the offering therefor has been terminated or (2) three years if the Company registered for resale the Registrable Securities on Form S-3 in satisfaction of such demand or (z) fifty (50) Business Days following the date on which such registration statement becomes effectivewas declared effective by the SEC, if the Company is neither a WKSI nor then eligible to use Form S-3 and registered for resale the Registrable Securities on Form S-1 or other applicable form in satisfaction of such demand; provided that each period specified in clause (2) of this sentence shall be extended automatically by one (1) Business Day for each Business Day that the use of such registration statement or prospectus is interfered with suspended by the Company pursuant to any stop orderSuspension Period, injunction pursuant to (e) or other order or requirement of the SEC or other governmental agency or courtpursuant to Section 5(i).
(eb) If the Requesting Shareholder any Investor intends to distribute the Registrable Securities covered by their such Investor’s request by means of an underwriting, they (i) such Investor shall so advise the Company as a part of their its request made pursuant to Section 2(a) and (ii) such Investor shall have the right to appoint the book-running, managing and other underwriter(s) in consultation with the Company.
(c) IHC shall have the right to effect only one demand registration pursuant to a registration statement on Form S-3 only pursuant to this Section 2. The Company shall not be required to effect a demand registration at TCP-ASC’s request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, this Section 2 (A) unless the number of shares of Registrable Securities requested to be included in such registration registered hereunder represents the lesser of 7% of the then-outstanding Common Stock, or, if the Investor reasonably determines that it is an “affiliate” pursuant to Rule 144 of the Securities Act (including any securities that or is otherwise subject to volume or manner of sale restrictions pursuant to Rule 144 of the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”Securities Act), the Company shall include in such registration, in number of Registrable Securities owned by the priority listed below, up to the Maximum Offering Size:
Investor and (B) (i) firstafter the Company has effected five registrations at TCP-ASC’s request pursuant to this Section 2 after the date hereof (of which no more than three may be on a form other than Form S-3), all and each of such registrations has been declared or ordered effective and kept effective by the Company as required by Section 5(a); or (ii) more than three times at TCP-ASC’s request during any twelve month period.
(d) The Company shall not be required to effect a demand registration at CoyCo 1’s or CoyCo 2’s request pursuant to this Section 2 (A) unless the number of Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedregistered hereunder represents the lesser of 7% of the then-outstanding Common Stock, or, if necessary for the offering not Investor reasonably determines that it is an “affiliate” pursuant to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis Rule 144 of the relative Securities Act (or is otherwise subject to volume or manner of sale restrictions pursuant to Rule 144 of the Securities Act), the number of Registrable Securities held owned by the Investor and (B) (i) after the Company has effected an aggregate of four registrations at the request of CoyCo 1 or CoyCo 2 pursuant to this Section 2 (of which no more than one may be on a form other than Form S-3), and each of such Shareholder, registrations has been declared or in such other proportion ordered effective and kept effective by the Company as shall mutually be agreed to required by all such Registering ShareholdersSection 2(a); and
or (ii) secondmore than three times at CoyCo 1 and CoyCo 2’s request during any twelve month period; provided, that, notwithstanding the limitation in clause (i), CoyCo 1 and CoyCo 2 shall, acting together, have the right to require the Company to effect an additional demand registration if CoyCo 1 and CoyCo 2 are, in the aggregate, unable to sell at least 85% of the Common Stock they desire to sell in any particular offering as a result of an Underwriter Cutback. For the avoidance of doubt, any securities proposed to be registered registration requested jointly by the Company (including CoyCo 1 and CoyCo 2 shall count as a single registration for the benefit purposes of any other Persons not party to this AgreementSection 2(d).
(fe) The Notwithstanding anything to the contrary in this Agreement, (1) upon notice to the demanding Investor and any Investor that has provided a Sales Notice pursuant to Section 6(a), the Company may postpone effecting a delay the Filing Deadline and/or the Effectiveness Deadline with respect to, or suspend the effectiveness or availability of, any registration pursuant statement for up to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 ninety (90) days in the aggregate in any twelve-month period of twelve consecutive months (which period may not be extended or renewed), a “Suspension Period”) if the Company furnishes would have to make an Adverse Disclosure in connection with the registration statement; provided that any suspension of a registration statement pursuant to Section 6(b) shall be treated as a Suspension Period for purposes of calculating the maximum number of days of any Suspension Period under this (e); and (2) upon notice to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In additiondemanding Investor, the Company shall not be obligated may delay the Filing Deadline and/or the Effectiveness Deadline with respect to effect, or to take any action to effect, any registration pursuant statement for a period not to Section 2.01 during the period that is exceed thirty (30) days before prior to the Company’s good faith estimate of the launch date of filing of, and ending on a date that is ninety (90) days after the effective closing date of, a CompanyCompany initiated registered offering of equity securities (including equity securities convertible into or exchangeable for Common Stock and any offering of equity securities that triggers rights under Section 5 of the TCP-initiated registration (other than a registration on Form S-8 ASC Investor Rights Agreement or any successor or similar formsthe CoyCo Investor Rights Agreement), ; provided that (i) the Company is actively employing in good faith all commercially reasonable efforts to cause launch such registered offering throughout such period, (ii) such demanding Investor is afforded the opportunity to include Registrable Securities in such registered offering in accordance with Section 3) and (iii) the right to delay or suspend the effectiveness or availability of such registration statement pursuant to become effectivethis clause (2) shall not be exercised by the Company more than twice in any twelve-month period and not more than ninety (90) days in the aggregate in any twelve-month period. If the Company shall delay any Filing Deadline pursuant to this clause (e), such demanding Investor may withdraw the demand therefor at any time so long as such delay is then continuing by providing written notice to the Company to such effect, and any demand so withdrawn shall not count as a demand for registration for any purpose under this Section 2, including Section 2(c) and 2(d).
(f) Notwithstanding anything to the contrary in this Agreement, LifePoint shall not have any rights under this Section 2.
Appears in 2 contracts
Sources: Registration Rights Agreement (R1 RCM Inc. /DE), Registration Rights Agreement (R1 RCM Inc.)
Demand Registration. (a) If at At any time following completion after the Closing hereof, upon written notice of the Initial Public Offering, subject to Holders of a majority of the terms then outstanding Registrable Securities (on a common stock equivalent basis) requesting that the Company effect a registration under the Securities Act of any “lock-up” agreement entered into with one Registrable Securities and specifying the intended method or more underwriters methods of distribution thereof (unless waived by such underwriter(s)which may include a continuous or delayed offering), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts prepare and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement Registration Statement on Form S-3 under the Securities Act, or other appropriate Form in the event Form S-3 is not available, covering the Registrable Securities then outstanding and (ii) shall use its commercially reasonable efforts to effect, cause such Registration Statement to become effective as expeditiously as possible, possible and in any event within one hundred twenty (120) days after to remain effective until the date the Demand Registration is given by the Requesting Shareholder, the effectiveness earlier to occur of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), date on which all Registrable Securities for which covered by such Registration Statement have been sold and the Requesting Shareholder distribution contemplated thereby has requested registration under this Section 2.01, and
been completed or (ii) subject to the restrictions set forth in Sections 2.01(e), date by which all other the Registrable Securities of covered thereby may be sold under Rule 144(k) (the same class as those requested to be registered by "Effectiveness Period"); provided, however, that the Requesting Shareholder that any other Shareholders (all such ShareholdersPurchaser shall not, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.016.1, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registrationbe entitled to sell, all to the extent necessary to permit the disposition during any calendar quarter, more than twenty-five percent (in accordance with the intended methods thereof as aforesaid25%) of the aggregate number of Registrable Securities so to be registeredoutstanding immediately following at the Closing, provided thator if the Company's fiscal year is not the calendar year, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale during any fiscal quarter of the Registrable Securities Company. A demand registration requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.016.1(a) will not be deemed to have been effected unless the Registration Statement relating thereto has become effective under the Securities Act and remains effective for the period described above.
(b) Promptly after A Holder (including the expiration of the seven-Business Day period referred Purchaser) or Holders requesting a registration pursuant to in this Section 2.01(a)(ii)6.1(a) may, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At at any time prior to the effective date of the registration statement Registration Statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, request by providing a written notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses any Other Approved Holder may include its securities in connection with any Demand Registrationdemand registration effected pursuant to this Section 6.1; provided, regardless of whether such Registration is effectedhowever, unless that if the Requesting Shareholder elects to pay such Registration Expenses as described in managing underwriter(s) or the last sentence of Section 2.01(b).
(drepresentative(s) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included several underwriters (the "Managing Underwriter") of a proposed underwritten public offering of Common Stock advises the Holder or Holders intending to participate in such registration have actually been sold thereunder)offering in writing that the total amount or kind of securities which such Holders, provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and such Other Approved Holders intend to include in such offering is sufficiently large to materially adversely affect the Requesting Shareholder thatsuccess of such offering, in its view, then the number amount or kind of shares securities to be offered for the accounts of Registrable Securities requested the Other Approved Holders shall be reduced pro rata among such Other Approved Holders to the extent necessary to reduce the total amount or kind of securities to be included in such registration (including any proposed public offering to the amount or kind recommended by such Managing Underwriter and, if such reduction results in no securities that being offered for the Company proposes accounts of the Other Approved Holders in such proposed public offering, then the amount or kind of securities to be included that are not Registrable Securities) exceeds offered for the largest number account of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up be reduced to the Maximum Offering Size:
(i) first, all Registrable Securities requested extent necessary to reduce the total amount or kind of securities to be included in such registration by all Registering Shareholders (allocated, if necessary for the proposed public offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed amount or kind recommended by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, such managing underwriter or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveunderwriters.
Appears in 2 contracts
Sources: Stock Purchase and Registration Rights Agreement (Direct Insite Corp), Stock Purchase and Registration Rights Agreement (Metropolitan Venture Partners Ii Lp)
Demand Registration. (a) If at At any time following completion beginning after November 1, 2022, holders of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty ten (10) percent (30%) of the Registrable Securities then outstanding, that the Company effect the outstanding may request registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s their Registrable Securities andpursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long- Form Registration shall specify the number of Registrable Securities requested to be included in each casethe Long-Form Registration. Upon receipt of any such request, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable (but in no event later than five (5) days following the date of receipt by the Company thereof) deliver notice of such request give notice to all other holders of such Demand Registration at least fifteen Registrable Securities who shall then have five (105) days after receipt from the date such notice is given to notify the Company in writing of their desire to be included in such Demand registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to the other Shareholders, if any, and thereupon shall be included in such Long-Form Registration within sixty (i) as soon as practicable, and in any event within forty five (4560) days after the date on which the Demand Registration initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, Commission as expeditiously soon as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the practicable thereafter. The Company shall not be obligated required to effect a Demand Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the aggregate proceeds expected holders requesting such registration are able to be received from the sale register and sell at least a majority of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01registration.
(b) Promptly after After the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii)Public Offering, the Company will notify shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, but in any event no earlier than November 1, 2022, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all Registering Shareholders or any portion of the identities of the other Registering Shareholders their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), but in any event no earlier than November 1, 2022, the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. At any time prior The Company may postpone for up to ninety (90) days the effective date filing or effectiveness of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be Registration Statement for a Demand Registration unless or a supplement (ia “Shelf Supplement”) such revocation arose out for the purpose of the fault of the Company (in which case the Company shall be obligated effecting an offering pursuant to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective Rule 415 under the Securities Act and or any successor rule thereto (iia “Shelf Takedown”) has remained effective for a period of at least 180 days (or if the Board determines in its reasonable good faith judgment that such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
Shelf Takedown would (i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganizationorganization, financing, securities offering or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. In additionThe Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of twelve (12) consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Class A Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Class A Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Class A Common Stock which can be sold in such underwritten offering and/or the number of shares of Class A Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Class A Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Class A Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Class A Common Stock proposed to be included therein by any other Persons (including shares of Class A Common Stock to be sold for the account of the Company and/or other holders of Class A Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not be obligated to effect, or to take file any action to effect, any registration pursuant to Section 2.01 during other Registration Statement without the period that is thirty (30) days before the Company’s good faith estimate consent of the date holders of filing of, and ending on a date that is ninety (90) days after majority of the effective date of, a Company-initiated Registrable Securities requesting registration (other than a registration on Form S-8 or any successor or similar forms), until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company is actively employing in good faith commercially reasonable efforts shall be permitted to cause such registration statement to become effectivefile any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Stockholders Agreement (P10, Inc.), Stockholders Agreement (P10, Inc.)
Demand Registration. (a) If at any time following completion a. Timing of Demand Registration ----------------------------- The Holders of no fewer than 35% of the Initial Public Offeringshares (as adjusted for any stock split, subject to the terms of any “lock-up” agreement entered into with one reverse stock split, stock dividend or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%similar transaction) of the Registrable Securities then outstanding, Restricted Stock may request in writing that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities ActAct covering shares of Restricted Stock having an anticipated aggregate offering price of at least $2,500,000 that are then Transfer Restricted Securities at any time before the seventh anniversary of the date of this Agreement. If the Company is requested to effect a Registration and the Company furnishes to the Holders of Restricted Stock requesting such Registration a copy of a resolution of the Board certified by the Secretary of the Company stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its shareholders for such Registration Statement to be filed on or before the date such filing would otherwise be required hereunder, the Company shall have the right to defer such filing for a period of not more than 135 days after receipt of the request for such Registration from the Holder or Holders of Restricted Stock requesting such Registration; provided that during such time the Company may not file a registration statement other than on Form S-8 for securities to be issued and (ii) use sold for its commercially reasonable efforts to effectown account or that of anyone other than the Holder or Holders of Restricted Stock requesting such Registration; provided, further, that the Company may not exercise such right more than once in any twelve-month period. Notwithstanding the foregoing, if the reasons for deferring such filing should expire within such 135-day period, the Company shall promptly notify the requesting Holders of such fact and shall file such Registration Statement as expeditiously as possible, and but in any no event within one hundred twenty (120) later than 135 days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness receipt of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities request for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Moore Capital Management Inc /New), Registration Rights Agreement (Digital Sound Corp)
Demand Registration. (a) If at any time following completion anytime prior to the expiration of the Initial Public OfferingRegistration Period and after the six month anniversary of this Agreement, subject any Registrable Securities shall not have been registered by the Company pursuant to Section 2.3 hereof, then Investor shall have the right by delivery of written notice to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))Company, to request that the Company shall receive effect a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (registration on Form S-3 covering the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) resale of the Registrable Securities then outstandingnot previously registered pursuant to Section 2.3; provided, however, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected any such registration if (i) Investor proposes to be received from the sale sell less than all of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior held by Investor at an aggregate price to the effective date public of the registration statement relating to such registrationless than $5,000,000, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is starting with the date thirty (30) days before prior to 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 (other than a registration on Form S-8 or any successor or similar forms), registration; provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective, (iii) in the event that the Company has, within the six (6) month period preceding the date of such request, already effected a registration on Form S-3 for Investor pursuant to this Section 2.1, or (iv) (A) in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (B) the Company shall furnish to Investor a certificate signed by the President 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 for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, 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 Investor, and, provided further, that the Company shall not defer its obligation in this manner more than once in any twelve-month period. The date on which the Company receives such notice is referred to herein as the “Demand Date.” In the event that Form S-3 is unavailable and/or inappropriate for such a registration of all the Registrable Securities, the Company shall use such other form or forms as are available and appropriate for such a registration, subject to the consent of the Investor, which shall not be unreasonably withheld.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonus Pharmaceuticals Inc), Registration Rights Agreement (Schering Berlin Venture Corp)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject Subject to the terms conditions of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))this Section 2.1, if the Company shall receive a written request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group the Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty fifty percent (3050%) of the Registrable Securities then outstanding, (the “Initiating Holders”) that the Company effect the file a registration statement on Form S-1 or Form F-1 under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated with an aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities andSelling Expenses, in each case, specifying the intended method excess of disposition thereof$15,000,000, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen shall, within ten (10) days after of the receipt thereof, give written notice of such Demand Registration request to all Holders, and, subject to the other Shareholderslimitations of this Section 2.1, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as reasonably possible, and in any event within one hundred twenty sixty (12060) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the receipt of such request, make an initial filing with the SEC of a registration statement under the Securities Act (or, if eligible, a draft registration statement, in each case covering) of all Registrable Securities that all Holders request to be registered.
(b) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) subject prior to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to 181st day following the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice pertaining to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); andInitial Offering;
(ii) second, any securities proposed to be registered by after the Company has effected two (including for the benefit of any other Persons not party to this Agreement).
(f2) The Company may postpone effecting a registration registrations pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months 2.1, and such registrations have been declared or ordered effective;
(which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (iiii) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is starting with the date thirty (30) days before prior to the Company’s good faith estimate of the date of filing of, and ending on a the date that is ninety (90) days after following the effective date of, of the registration statement pertaining to a Company-initiated registration (public offering, other than pursuant to a registration on Form S-8 or any successor or similar forms), Special Registration Statement; provided that the Company is actively employing in makes reasonable 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 sixty (60) days from the date of the initial request from the Initiating Holders;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.1 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 detrimental to the Company and its shareholders for such registration statement to be effected at such time 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 forty-five (45) 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 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 forty-five (45) day period other than pursuant to a Special Registration Statement; 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 2.3 below. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(b) until such time as the applicable registration statement has been declared effective by the SEC.
Appears in 2 contracts
Sources: Registration Rights Agreement (Achilles Therapeutics PLC), Registration Rights Agreement (Achilles Therapeutics LTD)
Demand Registration. (a) If Subject to the conditions of this Section 4.1, if the Corporation shall receive at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with after one or more underwriters hundred eighty (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45180) days after the effective date of an initial public offering of the Demand Registration is given Common Stock, a written request from Investor Parties holding a majority of the Common Stock on a Fully Diluted Basis held by all Investor Parties that the Requesting Shareholder, Corporation file a registration statement under the Securities ActAct covering the registration of Registrable Securities held by the Investor Parties with an anticipated aggregate offering price (net of underwriting discounts and commissions) of at least US$10,000,000, and (ii) then the Corporation shall, subject to the limitations of this Section 4.1, use its all commercially reasonable efforts to effect, as expeditiously soon as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholderpracticable, the effectiveness registration under the Securities Act of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested Investor Parties request to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01written request.
(b) Promptly after Notwithstanding the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii)foregoing, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration Corporation shall not be deemed required to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that 4.1:
(i) in any particular jurisdiction in which the Corporation would be required to execute a general consent to service of process in effecting such registration, unless the registration would materially Corporation is already subject to service in such jurisdiction and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving except as may be required under the Company or Securities Act; or
(ii) effecting after the registration would require the premature disclosure of material information that the Company Corporation has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration effected three (3) registrations pursuant to this Section 2.01 4.1, and such registrations have been declared or ordered effective; or
(iii) during the period that is thirty starting with the date sixty (3060) days before prior to the CompanyCorporation’s good faith estimate of the date of the filing of, of and ending on a date that is ninety one hundred eighty (90180) days after following the effective date of, of a CompanyCorporation-initiated registration (other than a registration on Form S-8 or any successor or similar forms)subject to Section 4.2 below, provided that the Company Corporation is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Corporation shall furnish to Investor Parties a certificate signed by the Corporation’s Chief Executive Officer or Chairman of the Board stating that in the good faith judgment of the Board, it would be materially detrimental to the Corporation and its stockholders for such registration statement to be effected at such time, in which event the Corporation shall have the right to defer such filing for a period of not more than sixty (60) days after receipt of the request of the Investor Parties, provided that such right shall be exercised by the Corporation not more than once in any twelve (12)-month period and provided further that the Corporation shall not register any securities for the account of itself or any other stockholder during such sixty (60) day period (other than a registration relating solely to the sale of securities of participants in a Corporation stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act, 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 Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
Appears in 2 contracts
Sources: Stockholders Agreement (Ivanhoe Electric Inc.), Stockholders Agreement (Ivanhoe Electric Inc.)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject Demand Registration Other Than on Form F-3 or Form S-3.
(i) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 50% of the then outstanding Class A Registrable Securities (the “lock-up” agreement entered into with one or more underwriters (unless waived by Class A Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such underwriter(s))a request, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”x) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) promptly give written notice of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand proposed Registration to all the other Shareholders, if any, Holders and thereupon shall (iy) as soon as practicable, and use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any event Registrable Securities of any Holder who requests in writing to join such Registration within forty five fifteen (4515) days after the date the Demand Registration is given by the Requesting ShareholderCompany’s delivery of written notice, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by Registered and/or qualified for sale and distribution in such jurisdiction as the Requesting Shareholder that any other Shareholders Class A Initiating Holder may request. The Company shall be obligated to effect no more than two (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register 2) Registrations pursuant to this Section 2.012.1(a)(i) that have been declared and ordered effective, by request received by provided that if the Company within seven Business Days after such Shareholders receive the Company’s notice sale of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so sought to be registeredincluded pursuant to this Section 2.1(a)(i) is not consummated for any reason other than due to the action or inaction of the Class A Initiating Holder in such Registration, provided that, such Registration shall not be deemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(i). The Company shall not be obligated to take any action to effect a Demand any Registration pursuant to this Section 2.1(a)(i) unless the aggregate proceeds expected to be received from the sale offering that is the subject of the Registration exceeds US$10,000,000.
(ii) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series A Registrable Securities (the “Series A Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities requested specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be included Registered and/or qualified for sale and distribution in such Demand Registration equals or exceeds $10,000,000jurisdiction as the Series A Initiating Holder may request. In no event The Company shall the Company be required obligated to effect no more than two (2) Demand Registrations pursuant to this Section 2.01.
(b2.1(a)(ii) Promptly after that have been declared and ordered effective, provided that if the expiration sale of all of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested sought to be included therein. At pursuant to this Section 2.1(a)(ii) is not consummated for any time prior reason other than due to the effective date action or inaction of the registration statement relating to Series A Initiating Holder including the Registrable Securities in such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless constitute one of the registration statement relating thereto Registration rights granted pursuant to this Section 2.1(a)(ii).
(iiii) has become effective under Subject to the Securities Act and terms of this Agreement, at any time or from time to time following the date that is six (ii6) has remained effective for months after the closing of a period Qualified IPO, any Holder(s) of at least 180 days 30% of the then outstanding Series B Registrable Securities (or the “Series B Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such shorter period a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in which all the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Registering Shareholders included Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such registration jurisdiction as the Series B Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(iii) that have actually been sold thereunder)declared and ordered effective, provided that a Demand if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(iii) is not consummated for any reason other than due to the action or inaction of the Series B Initiating Holder including the Registrable Securities in such Registration, such Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement constitute one of the SEC or other governmental agency or courtRegistration rights granted pursuant to this Section 2.1(a)(iii).
(eiv) If Subject to the Requesting Shareholder intends terms of this Agreement, at any time or from time to distribute time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series C Registrable Securities covered by their (the “Series C Initiating Holder”) may request by means of an underwriting, they shall so advise the Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities writing that the Company proposes to be included that are not Registrable Securities) exceeds effect a Registration on the largest number stock exchange for the Qualified IPO. Upon receipt of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”)a request, the Company shall include (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such registrationjurisdiction as the Series C Initiating Holder may request. The Company shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.1(a)(iv) that have been declared and ordered effective, in provided that if the priority listed below, up to sale of all of the Maximum Offering Size:
(i) first, all Registrable Securities requested sought to be included pursuant to this Section 2.1(a)(iv) is not consummated for any reason other than due to the action or inaction of the Series C Initiating Holder including the Registrable Securities in such registration by all Registering Shareholders (allocatedRegistration, if necessary for the offering such Registration shall not be deemed to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis constitute one of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party Registration rights granted pursuant to this AgreementSection 2.1(a)(iv).
(fv) Subject to the terms of this Agreement, at any time or from time to time following the date that is six (6) months after the closing of a Qualified IPO, any Holder(s) of at least 50% of the then outstanding Series D Registrable Securities (the “Series D Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series D Initiating Holder may request. The Company may postpone effecting a registration shall be obligated to effect no more than two (2) Registrations pursuant to this Section 2.01 on two occasions during 2.1(a)(v) that have been declared and ordered effective, provided that if the sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(v) is not consummated for any period reason other than due to the action or inaction of twelve consecutive months for a reasonable time specified the Series D Initiating Holder including the Registrable Securities in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may such Registration, such Registration shall not be extended or reneweddeemed to constitute one of the Registration rights granted pursuant to this Section 2.1(a)(v), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the The Company shall not be obligated to effect, or to take any action to effect, effect any registration Registration pursuant to this Section 2.01 during 2.1(a)(v) unless the period aggregate proceeds from the offering that is thirty (30) days before the Company’s good faith estimate subject of the date Registration exceeds US$10,000,000.
(vi) Subject to the terms of filing ofthis Agreement, and ending on a at any time or from time to time following the date that is ninety six (906) months after the closing of a Qualified IPO, any Holder(s) of at least 30% of the then outstanding Series E Registrable Securities (the “Series E Initiating Holder”) may request in writing that the Company effect a Registration on the stock exchange for the Qualified IPO. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all the other Holders and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the effective date ofCompany’s delivery of written notice, a Company-initiated registration to be Registered and/or qualified for sale and distribution in such jurisdiction as the Series E Initiating Holder may request. The Company shall be obligated to effect no more than two (other than a registration on Form S-8 or any successor or similar forms)2) Registrations pursuant to this Section 2.1(a)(vi) that have been declared and ordered effective, provided that if the Company sale of all of the Registrable Securities sought to be included pursuant to this Section 2.1(a)(vi) is actively employing not consummated for any reason other than due to the action or inaction of the Series E Initiating Holder in good faith commercially reasonable efforts such Registration, such Registration shall not be deemed to cause such registration statement constitute one of the Registration rights granted pursuant to become effectivethis Section 2.1(a)(vi).
Appears in 2 contracts
Sources: Share Purchase Agreement (eHi Car Services LTD), Share Purchase Agreement (eHi Car Services LTD)
Demand Registration. (ai) If at any time following completion of the Initial Public Offering, subject Subject to the terms conditions of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)this Section 6.1(a), if the Company shall receive a written request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder the Investors on one or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, more occasions that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and on Form S-1 (ii) use its commercially reasonable efforts to effect“Long-Form Registration”), Form S-3 (“Short-Form Registration”), or any successor form thereto, covering the registration of the Shares, then the Company shall, as expeditiously as reasonably possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of effect the registration statement, in each case covering:
(i) subject to under the restrictions set forth in Sections 2.01(e), Securities Act of all Registrable Securities for which (as defined below) that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, Investors have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatthat for any registration pursuant to this Section 6.1(a), the aggregate market value of the Registrable Securities to be registered (or included in a takedown from a Resale Shelf involving an underwritten offering or a block trade) must be at least $20 million as of the date of the request for such registration or takedown (or at least $10 million as of the date of such request in the event that the Registrable Securities to be registered (or included in a takedown from a Resale Shelf involving an underwritten offering or a block trade) constitute all Registrable Securities as of the date of such request). At any time when the Company is eligible to file a registration statement on Form S-3 for a secondary offering of equity securities pursuant to Rule 415 under the Securities Act (a “Resale Shelf”), any registration statement requested pursuant to this Section 6 shall be made as a Resale Shelf. In such event, unless a shorter period is requested by the Investors, the Company shall maintain such Resale Shelf until the earliest of (i) the date on which the Investors cease to hold Registrable Securities covered by such Resale Shelf, (ii) the third anniversary of the date of filing such registration statement and (ii) the date as of which there are no longer any Registrable Securities covered by such Resale Shelf. Following the effectiveness of a Resale Shelf, any resale of Shares pursuant to this Section 6 shall be in the form of a “takedown” from such Resale Shelf rather than a separate registration statement. Each Investor agrees that, except as required by applicable law, such Investor shall treat as confidential the submission of a request for registration and shall not disclose or use the information contained in such request without the prior written consent of the Company until such time as the information contained therein is or becomes available to the public generally, other than as a result of disclosure by the Investor in breach of the terms of this Agreement.
(ii) If the Investors intend to distribute the Registrable Securities covered by its request by means of an underwriting, the Investors shall so advise the Company as part of its request made pursuant to this Section 6.1(a). In such case, each of the Company and the Investors shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Investors participating in the offering (which underwriter or underwriters shall be reasonably acceptable to the Company). If the underwriter advises the Company that marketing, pricing or other similar factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise the Investors, and the number of shares that may be included in the underwriting shall be reduced accordingly pro rata among the respective holders; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale reduced below 25% of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall registration unless all other securities of the Company are first entirely excluded from the underwriting.
(iii) The Investors shall be required entitled to effect more than only up to two (2) Demand Long-Form Registrations (provided that the Investors shall only be entitled to request the second Long-Form Registration at a time when the Company is not eligible to file a registration statement on Form S-3 for a secondary offering of equity securities) and up to five (5) Short-Form Registrations (including takedowns from a Resale Shelf involving an underwritten offering or a block trade) pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii6.1(a), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and provided, however, that if the number of shares of Registrable Securities requested by the Investors to be included therein. At any time prior in either a Short-Form Registration or a Long Form Registration is reduced by more than 20% below that number requested by the Investors pursuant to Section 6.1(a)(ii), such registration shall not count against the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses limits set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestin this Section 6.1(a)(iii).
(civ) The Company shall not be liable for and shall pay all Registration Expenses in connection with any Demand Registrationrequired to effect a registration, regardless of whether such Registration is effectedor a takedown from a Resale Shelf (which, unless the Requesting Shareholder elects to pay such Registration Expenses as described solely in the last sentence case of Section 2.01(bclauses (B).
, (dD) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (iiE) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder)below, provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and offering or a block trade), pursuant to this Section 6.1(a):
(A) prior to the managing underwriter advises expiration of the Holdback Period;
(B) within 90 days after the Company has effected a registration, or a takedown from a Resale Shelf involving an underwritten offering or a block trade, pursuant to this Section 6.1(a) and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration has been declared or ordered effective or such takedown from a Resale Shelf shall have been completed;
(including any securities that C) if, within five (5) days of receipt of a written request from the Company proposes Investor pursuant to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”this Section 6.1(a), the Company shall include acting in such registration, in the priority listed below, up good faith gives notice to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis Investor of the relative number of Registrable Securities held by each Company’s intention to file a registration statement within forty-five (45) days, other than pursuant to a Special Registration Statement; provided, that such Shareholder, or in such other proportion as right to delay a request shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered exercised by the Company not more than once in any twelve (including for the benefit of any other Persons not party to this Agreement).12) month period,
(fD) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes shall furnish to the Requesting Shareholder Investor a certificate signed by the Company’s chief executive officer Chairman of the Board of Directors or the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its stockholders for such registration statement to be effected at such time (i) effecting the including without limitation if such registration statement would materially and adversely interfere with a significant acquisitionaffect any proposal or plan of the Company or its Subsidiaries to engage in any material acquisition of assets or stock or any merger, corporate reorganizationconsolidation, tender offer, recapitalization, reorganization or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In additionits Subsidiaries), in which event the Company shall have the right to defer such filing for a period of not more than sixty (60) days after receipt of the request of the Investor; provided such sixty (60 day period may be extended for an additional sixty (60) days with the consent of the Investors requesting the registration, which consent shall not be obligated unreasonably withheld; provided further, that such right to effectdelay a request shall be exercised by the Company not more than once in any twelve (12) month period; or
(E) more than twice in any twelve (12) month period.
(v) The Company may suspend the use of a prospectus that is part of a Resale Shelf for up to sixty (60) days in the circumstances specified in Section 6.1(a)(iv)(D) upon delivering to the Investor the certificate specified in Section 6.1(a)(iv)(D) (a “Suspension Notice”); provided such sixty (60 day period may be extended for an additional sixty (60) days with the consent of the Investor, or which consent shall not be unreasonably withheld; provided further, that such suspension right shall be exercised by the Company not more than once in any twelve (12) month period. A holder of Registrable Securities shall not effect any sales of Registrable Securities pursuant to take such registration Statement at any action time after it has received a Suspension Notice from the Company and prior to effectreceipt of an End of Suspension Notice (as defined below). The holders may recommence effecting sales of the Registrable Securities pursuant to the Resale Shelf following further written notice to such effect (an “End of Suspension Notice”) from the Company to the holders. The Company shall act in good faith to permit any suspension period contemplated by this Section 6.1(a)(v) to be concluded as promptly as reasonably practicable.
(vi) Each Investor agrees that, except as required by applicable law, such Investor shall treat as confidential the receipt of any registration notice pursuant to Section 2.01 during 6.1(a)(iv)(D) or any Suspension Notice and shall not disclose or use the period that is thirty (30) days before information contained in such notice without the Company’s good faith estimate prior written consent of the date of filing ofCompany until such time as the information contained therein is or becomes available to the public generally, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than as a registration on Form S-8 or any successor or similar forms), provided that result of disclosure by an Investor in breach of the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveterms of this Agreement.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (TerraForm Power, Inc.), Common Stock Purchase Agreement (TerraForm Power, Inc.)
Demand Registration. (a) If From and after January 1, 2001, the Holders of at any time following completion least 66 2/3% of the Initial Public Offeringthen outstanding Registrable Securities may notify the Company in writing that such Holders desire for the Company to cause all or a portion of such notifying Holders' Registrable Securities to be registered for sale to the public under the Act. Upon receipt of such written request, the Company will promptly notify in writing all other Holders of Registrable Securities of such request, which Holders shall within twenty days following such notice from the Company notify the Company in writing whether such persons desire to have Registrable Securities held by them included in such offering. The Company will, promptly following the expiration of such twenty day period, prepare and file subject to the terms provisions of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if anythis Section 1, and thereupon shall (i) as soon as practicableuse its best efforts to prosecute to effectiveness, and in any event within forty five (45) days after an appropriate filing with the date the Demand Registration is given by the Requesting Shareholder, file SEC of a registration statement covering such Registrable Securities and the proposed sale or distribution thereof under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:.
(ib) subject Notwithstanding anything in this Section 1.2 to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatcontrary, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals prepare or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations file any registration statement pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred 1.2 or to in Section 2.01(a)(ii)prepare or file any amendment or supplement thereto, at any time when the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder delivers a certificate signed by the Company’s chief executive officer 's Chief Executive Officer or Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company that the filing thereof at the time requested, or the offering of securities pursuant thereto (i) effecting the registration would materially and adversely interfere with affect a significant pending or proposed public offering of the Company's securities, or an acquisition, corporate reorganizationmerger, recapitalization, consolidation, reorganization or other similar transaction involving the Company transaction, negotiations, discussions or pending proposals with respect thereto or (ii) effecting would materially adversely affect the registration would require business or prospects of the premature disclosure Company in view of material the disclosures that may be required thereby of information about the business, assets, liabilities or operations of the Company not theretofore disclosed; provided, however, that the filing of a registration statement, or any supplement or amendment thereto, by the Company has a bona fide business purpose may be deferred pursuant to preserve as confidential. In addition, this Section 1.2 for no longer than 180 days (but only once in every twelve month period) after the delivery of such demand notice.
(c) Notwithstanding anything in this Section 1.2 to the contrary: (i) the Company shall not be obligated required to effect, or effect the registration of the Registrable Securities pursuant to take this Section 1.2 more than one time in any action twelve month period and no more than three times in the aggregate; and (ii) the Company shall not be required to effect, effect any such registration unless at least $5 million of Registrable Securities are to be sold in such registration (with such amount being determined based on the market price of the Common Stock on the date of the initiating Holder(s) request). If any registration pursuant to this Section 2.01 during 1.2 is in the period form of an underwritten offering, the Company will select and obtain the investment banker or investment bankers and manager or managers that is thirty will administer the offering, which investment bankers must offer terms which are reasonably competitive in the marketplace for similar size companies and similar offerings. The Company shall (30together with all Holders proposing to distribute Registrable Securities through such underwriting) days before enter into an underwriting agreement, containing usual and customary terms, with the Company’s good faith estimate managing underwriter selected for such underwriting. If any holder of Registrable Securities disapproves of the date terms of filing the underwriting, such person may elect to withdraw therefrom by written notice to the Company and the managing underwriter. The Registrable Securities so withdrawn shall also be withdrawn from registration.
(d) If any registration statement under this Section 1.2 is not declared effective (except as a result of Holders withdrawing Registrable Securities), then the holders of Registrable Securities may request an additional registration under this Section 1.2.
(e) No registrations effected under this Section 1.2 shall relieve the Company of its obligations to effect any registrations under, and pursuant to the terms of, Sections 1.3 and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective1.4 hereof.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Mobility Electronics Inc), Investor's Rights Agreement (Mobility Electronics Inc)
Demand Registration. (a) If at any time following completion of the Initial Public OfferingCompany shall receive a request from FP; or
(b) if at any time (but only once and provided the right in subsection (c) below has not previously been exercised) during the period beginning on June 29, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))2008 and ending on December 29, 2009, the Company shall receive a request from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as agent for the ▇▇▇▇▇▇ Stockholders; or
(c) if at any time following the later of (i) December 29, 2006 and (ii) the day ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ becomes a Non-Employee (as defined herein) (but only once, and provided the right in subsection (b) above has not been exercised, and provided further that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ has ceased to be (A) an employee or (B) a director, provided that he has not ceased to be a director either because he was not elected by the Company's stockholders after having been nominated to stand for election or because he declined to stand for election (in either A or B, a “Non-Employee”), of the Company) at any time during the period beginning on the date hereof and ending on June 28, 2008, the Company shall receive a request from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as agent for the ▇▇▇▇▇▇ Stockholders that the Company effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities (provided however, that any sales made pursuant to a request under Section 2.01(c) may only be effected up to the maximum number of shares that may be sold pursuant to Section 3 of the Lockup Agreement), and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) 15 Business Days prior to the anticipated filing date of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of statement relating to such Demand Registration to the other Shareholders, if any, Stockholders and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially all reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case coveringunder the Securities Act of:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder Stockholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e)2.01(g) and 2.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder Stockholder that any other Shareholders Stockholders with rights to request registration under Section 2.02 (all such ShareholdersStockholders, together with the Requesting ShareholderStockholder, the “Registering ShareholdersStockholders”), if any, ) have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven 15 Business Days after such Shareholders Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, that the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,0005,000,000, and provided, further, that the Company shall not be required to effect a Demand Registration pursuant to subsection (b) hereof pursuant to Rule 415 (or its successor provision) and provided, further, that a registration pursuant to subsection (c) shall be, if so requested, pursuant to Rule 415 (or its successor provision) under the Securities Act. In no event shall the Company be required to effect more than two (2) one Demand Registrations pursuant to this Section 2.01Registration hereunder within any ninety day period.
(bd) Promptly after the expiration of the seven15-Business Day period referred to in Section 2.01(a)(ii2.01(c)(ii), the Company will notify all Registering Shareholders Stockholders of the identities of the other Registering Shareholders Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder Stockholders may revoke such request, without liabilityliability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(ce) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(df) A Demand Registration shall not be deemed to have occurred occurred:
(i) unless the registration statement relating thereto (iA) has become effective under the Securities Act and (iiB) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtcourt and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(g) such that less than 66 2 / 3 % of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(eg) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder Stockholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) firstFirst, all Registrable Securities requested to be registered by the Requesting Stockholder;
(ii) second, all other Registrable Securities requested to be included in such registration by all any Registering Shareholders Stockholder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders other Stockholders on the basis of the relative number of Registrable Securities held so requested to be included in such registration by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering ShareholdersStockholder); and
(iiiii) secondthird, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)Company.
(fh) The Upon notice to each Requesting Stockholder, the Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions one occasion during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 60 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Stockholders in writing that effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving affect an offering of securities of such Company the Company preparation of which had then been commenced or (ii) effecting the registration would require Company is in possession of material non-public information the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 which during the period that is thirty (30) days before specified in such notice the Company reasonably believes would not be in the reasonable interests of 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Leonid & Inna Mezhvinsky as Trustees of the Revocable Trust Agreement of Leonid Mezhvinsky & Inna Mezhvinsky, Dated April 26, 1988), Registration Rights Agreement (Ultra Clean Holdings Inc)
Demand Registration. (a) If Subject to the restrictions set forth below, if at any time following completion of after the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))Prospectus Date, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders the Holders (the requesting Shareholder(s"Requesting Holders") shall be referred to herein as the “Requesting Shareholder”), holding owning at least thirty five percent (3025%) of the then outstanding shares of Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering as of the Company after the completion date of the Initial Public Offering (the “Follow-On Offering”)request, a written request to register at least twenty fifteen percent (2015%) of the Requesting Shareholder’s aggregate number of Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, owned by all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying Holders as of the intended method date of disposition thereofsuch request, then the Company shall as promptly as practicable following the date of receipt by the Company of such request will give notice of such Demand Registration at least fifteen request to all Holders within ten (10) days after receipt of receiving such Demand Registration to the other Shareholders, if any, request and thereupon shall (i) effect as soon thereafter as practicable, and in any event within forty forty-five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities receipt of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by which any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested Holder requests to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) registered. The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration such Registration pursuant to this Section 2.01 during 2.01:
(a) During the period that is thirty starting with the date sixty (3060) days before prior to the Company’s 's good faith estimate of the date of filing of, and ending on a date that is ninety one hundred eighty (90180) days after the effective date of, a Company-Company initiated registration (other than a registration on Form S-8 or any successor or similar forms), Registration; provided that the Company is has delivered notice of such Registration to the Holders prior to its receipt of the Holders' written request for a demand Registration and it continues to actively employing employ in good faith commercially all reasonable efforts to cause such registration statement Registration Statement to become effective; or
(b) if the Holders have requested an Underwritten Registration, the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or
(c) if in the good faith judgment of the Board, such Registration would be seriously detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period. Notwithstanding the foregoing, the Company shall ensure that no such Registration shall become effective with respect to any Registrable Securities subject to an applicable Lock-up Period until after the expiration of the applicable Lock-up Period. Furthermore, the Company shall not be required to effect more than three (3) Registrations, which may be either Long-Form Registrations or Short-Form Registrations, under this Section 2.01 on behalf of the Holders; provided, however, that a Registration shall not be counted for such purposes unless such Long-Form Registration has become effective and all of the Registrable Securities requested by the Requesting Holders to be registered on behalf of the Requesting Holders in such Long-Form Registration have been sold, in accordance with Section 3.01(a) of this Agreement; and provided, further, however, that the Company will not be obligated to effect any such Short-Form Registration:
(a) if Form S-3 is not available for such offering;
(b) if in the good faith judgment of the Board, such Registration would be seriously detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period;
(c) if the Company has effected one (1) Short-Form Registration within the six (6) month period prior to the current request for Short-Form Registration; or
(d) if the Registrable Securities to be covered by such registration statement do not, in the aggregate, exceed $500,000.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hicks Acquisition CO I Inc.), Registration Rights Agreement (Hicks Acquisition CO I Inc.)
Demand Registration. (a) If the Company shall be requested in writing by the Purchaser, or by Holders who beneficially own at any time following completion least 7,000,000 Purchaser Shares, to effect a registration under the Securities Act of Purchaser Shares in accordance with this Section 9.2, then the Initial Public Offering, Company shall promptly give written notice of such proposed registration to the Purchaser and all Holders and shall offer to include (subject to the terms of this Agreement) in such proposed registration any “lock-up” agreement entered into with one or more underwriters (unless waived Purchaser Shares requested to be included in such proposed registration by such underwriter(sholders who respond in writing to the Company's notice within 15 days after delivery of such notice (which response shall specify the number of Purchaser Shares proposed to be included in such registration and the intended method of distribution, which may be pursuant to a shelf registration)), . Such written registration request shall specify the approximate number of Purchaser Shares requested to be registered and the anticipated per share price range for such offering. The Company shall receive a request (each promptly use its best efforts to effect such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration on an appropriate form under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then Purchaser Shares which the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those been so requested to be registered by the Requesting Shareholder register; provided, however, -------- ------- that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless any registration under the aggregate proceeds expected to be received from Securities Act except in accordance with the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall following provisions:
(i) the Company shall not be required obligated to effect more than two (2) Demand Registrations file a registration statement pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time 9.2 prior to the effective date first anniversary of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration Closing Date unless (ix) such revocation arose out of a Person other than the fault of the Company Purchaser or a Holder exercises a demand registration right (in which case the Company must immediately comply with any demand made hereunder) other than the registration rights referred to in Section 6.1(f) hereof or (y) executive officers (as such term is defined in Rule 3b-7 under the Exchange Act) of the Company shall be obligated to pay all Registration Expenses in connection with such revoked requesthave sold an aggregate of 850,000 or more shares of Common Stock from and after the Closing Date or (z) ▇▇▇▇▇ ▇▇▇▇▇▇ shall have sold an aggregate of 600,000 or more shares of Common Stock from after the Closing Date;
(ii) the Requesting Shareholder reimburses Company shall not be obligated to file more than (a) three registration statements in total pursuant to this Section 9.2 plus (b) one additional registration statement registering all Purchaser Shares then owned by the Purchaser, subject to paragraph (c) below;
(iii) the Company for all Registration Expenses shall not be obligated to file or cause to be declared effective any registration statement during any period in which (A) any other registration statement (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective on Form S-4 or Form S-8 promulgated under the Securities Act and (iior any successor forms thereto) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 180 days, and provided, that the Company shall include use reasonable efforts to -------- achieve a shorter period or to have such information restrictions released in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises less than 180 days or (B) the Company and the Requesting Shareholder that, has determined in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities good faith that the Company proposes to be included that are not Registrable Securities) exceeds the largest number filing of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration statement would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition, such filing to be delayed until the Company shall not be obligated to effect, or to take any action to effect, any date which is 90 days after such request for registration pursuant to this Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), 9.2; provided that the Company is actively employing may only so delay the filing or -------- effectiveness of a registration statement pursuant to this Section 9.2(a)(iii)(B) on one occasion during any twelve month period;
(iv) with respect to the registration pursuant to this Section, the Company may include in good faith commercially reasonable efforts such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter advises the -------- ------- Company in writing that the inclusion of all Purchaser Shares, Primary Shares and Other Shares proposed to cause be included in such registration would adversely affect the successful marketing (including pricing) of all such securities, then the number of Purchaser Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) First, the Purchaser Shares held by all Selling Investors, ----- pro rata based upon the number of Purchaser Shares owned by each such --- ---- Selling Investor at the time of such registration;
(B) Second, the Primary Shares; and ------
(b) The Person requesting a registration pursuant to this Section may, in the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such Person shall elect one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the Company. The Company shall, together with Selling Investors, if it proposes to sell Primary Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration under this Section 9.2 may be rescinded by written notice to the Company by the Selling Investors holding a majority of the Purchaser Shares to be included in such registration under the following circumstances:
(A) If such registration statement is rescinded prior to become effectivethe filing date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section 9.2 for purposes of paragraph (a) above;
(B) If such registration statement is rescinded after the filing date but prior to its effective date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section 9.2 for purposes of paragraph (a) above if the Selling Investors (x) have reimbursed the Company for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company of such fact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to correct such alleged misstatement or omission; and
(C) A registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above unless it becomes effective and either (i) the Selling Investors are able to sell at least 80% of the Purchaser Shares sought to be included in such registration statement or (ii) such registration statement is kept effective for at least 180 days prior to such rescission notice.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Apollo Investment Fund Iv Lp), Securities Purchase Agreement (Rare Medium Group Inc)
Demand Registration. (a) If at any time following completion after the earlier of (i) October 2, 2018 or (ii) six (6) months after the effective date of the Initial Public Offering, subject to registration statement for the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty fifty percent (3050%) of the Registrable Securities consisting of Series B Units (or any security issuable upon conversion of, or in exchange for, Series B Units) then outstanding that the Company file a Form S-1 registration statement with respect to the Registrable Securities then outstanding, provided that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof30 million, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10i) within twenty (20) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders; and thereupon shall (iii) as soon as practicable, and in any event within forty five ninety (4590) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a Form S-1 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (including 20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsection 2.1(d) and Subsection 2.3.
(b) If at any securities time after the effective date of the registration statement for the IPO, the Company receives a request from Holders of fifty percent (50%) of the Registrable Securities (or any security issuable upon conversion of, or in exchange for the Registrable Securities) then outstanding that the Company proposes file a Form S-1 registration statement with respect to the Registrable Securities then outstanding, provided that the anticipated aggregate offering price, net of Selling Expenses, would exceed $30 million, then the Company shall (i) within twenty (20) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within ninety (90) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included that are not Registrable Securitiesin such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) exceeds days of the largest number date the Demand Notice is given, and in each case, subject to the limitations of shares that can be sold without having an adverse effect on such offering, including the price Subsection 2.1(d) and Subsection 2.3.
(c) If at which such shares can be sold (the “Maximum Offering Size”)any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least five percent (5%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $10 million, then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) firstwithin twenty (20) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within twenty (including for 20) days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this Agreement)Subsection 2.1(d) and Subsection 2.3.
(fd) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in Notwithstanding the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed)foregoing obligations, if the Company furnishes to the Requesting Shareholder Holders requesting a registration pursuant to this Subsection 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its equity holders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition; 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 for a period of not more than ninety (90) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than 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 equity holder during such ninety (90) day period other than an Excluded Registration.
(e) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 one registration pursuant to Subsection 2.1(a); (iii) if the Initiating Holders propose to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(c); or (iv) if the Initiating Holders have initiated a demand registration pursuant to Subsection 2.1(b), during the period commencing on the date such Initiating Holders have given a Demand Notice and ending on the date that is one hundred eighty (180) days after the effective date of the registration statement filed in respect of such Demand Notice. The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (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 one registration pursuant to Subsection 2.1(b) within the twelve (12) month period immediate preceding the date of such request; or (iii) if the Initiating Holders propose to dispose of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(c) (i) 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(c) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(e) until such time as the applicable registration statement has been declared effective by the SEC, 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 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Subsection 2.1(e).
Appears in 2 contracts
Sources: Registration Rights Agreement (Nant Health, LLC), Registration Rights Agreement (Nant Health, LLC)
Demand Registration. (a) If at any time following completion during the Eligible Period the Stockholder requests in writing (the “Stockholder Demand”) that the Company file a registration statement on Form S-3 (or any successor form to Form S-3) for a public offering of shares of the Initial Public OfferingRegistrable Shares the Company shall, subject to Section 2.4, file such Registration Statement with the terms of any “lockSEC within forty-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) its receipt of such request. The Company shall use its commercially reasonable efforts to effectcause such Registration Statement to be declared effective as soon thereafter as practicable and keep such registration statement effective until the Stockholder notifies the Company in writing that the Company is no longer required to keep such Registration Statement effective. In no event, as expeditiously as possiblehowever, and in any event within shall the Company be required to (i) effect more than two (2) registrations pursuant to this section or (ii) keep one or more registration statements filed pursuant to this section effective for more than an aggregate of one hundred twenty (120) days after days. In the date event the Demand Registration registration is given by the Requesting Shareholderproposed to be part of a firm commitment underwritten public offering, the effectiveness substantive provisions of the Section 2.3 shall be applicable to each such registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration initiated under this Section 2.01, and
(ii) subject 2.1 and the piggyback registration rights of Stockholder shall be applicable to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register a registration effected pursuant to this Section 2.01, by request received by 2.1.
(b) Notwithstanding the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatforegoing, the Company shall not be obligated to take any action pursuant to subparagraph (a):
(i) if the Company, within ten (10) days of the receipt of the Stockholder Demand, gives notice of its bona fide intention to effect the filing of a Demand Registration unless registration statement with the aggregate proceeds expected SEC within sixty (60) days of receipt of such demand (other than a registration relating primarily to the sale of securities to participants in a Company stock plan or employee benefit plan, a transaction covered by Rule 145 under the Securities Act or the resale of securities issued in such a transaction, a registration in which the only stock being registered is Common Stock issuable upon conversion or exchange of debt securities which are also being registered, or any registration on any form which does not include substantially the same information as would be required to be received from included in a registration statement covering the sale of the Registrable Securities requested to be included in Shares); provided, however, that if such Demand Registration equals or exceeds $10,000,000. In no event shall registration statement is not filed by the Company be required to effect more than two (2) within 60 days of receipt of such Stockholder Demand Registrations pursuant to this Section 2.01.
(b) Promptly and declared effective by the SEC within 120 days after the expiration Company’s receipt of the seven-Business Day period referred to in Section 2.01(a)(ii)such Stockholder Demand, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with cause such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) Registrable Shares of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed Stockholder to be registered by in accordance with the Company (including for the benefit provisions of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), 2.1 provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective; or
(ii) during the period starting with the Company’s date of filing of, and ending on the date ninety (90) days immediately following, the effective date of any registration statement pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an offering solely to employees or consultants, or any other registration which is not appropriate for the registration of Registrable Shares), which registration was either filed as a result of the exercise by Stockholder of its rights pursuant to Section 2.1 hereof or was subject to Section 2.2 hereof.
Appears in 2 contracts
Sources: Investor Rights Agreement (Digital River Inc /De), Investor Rights Agreement (Intraware Inc)
Demand Registration. (a) If at At any time following completion the second anniversary of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other ShareholdersClosing Date, if anyQuest Diagnostics shall notify TriPath in writing that it intends to offer or cause to be offered any Warrant Shares for public sales in accordance with Section 4.2 hereof, and thereupon shall (i) as soon as practicableTriPath shall, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholderpromptly following such notice, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effecteffect the registration of such Warrant Shares on a Registration Statement (as defined in Section 4.1.10 below) on Form S-1 or, as expeditiously as possibleif TriPath then meets the eligibility requirements for the use of Form S-3 for the registration of securities in a transaction involving secondary offerings, and in Form S-3 (or any event within one hundred twenty (120) days after the date the Demand successor form of Registration is given Statement promulgated by the Requesting Shareholder, SEC that would cover the effectiveness resale of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(eWarrant Shares), all Registrable Securities for which covering the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities resale of the same class as those requested Warrant Shares proposed to be registered offered by the Requesting Shareholder that any other Shareholders (all such ShareholdersQuest Diagnostics; provided, together with the Requesting Shareholderhowever, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company reasonably anticipated aggregate price to the public for all Warrant Shares proposed to be sold in such public offering would exceed $1,000,000; and provided further, however, that TriPath shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a one registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate 4.1.1 in any period twelve (12) month period. If at the time of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes any request to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration register Warrant Shares pursuant to this Section 2.01 during the period that 4.1.1, TriPath is engaged or has fixed plans to engage within thirty (30) days before of the Company’s time of the request in a registered public offering as to which Quest Diagnostics may include Warrant Shares pursuant to Section 4.1.2 or is engaged in any other activity which, in the good faith estimate determination of TriPath's Board of Directors, would be adversely affected by the requested registration to the material detriment of TriPath, then TriPath may at its option direct that such request be delayed for a period not in excess of six (6) months from the effective date of such offering or the date of filing ofcommencement of such other material activity, and ending on as the case may be, such right to delay a date that request to be exercised by TriPath not more than once in any one (1) year period. Any notification by Quest Diagnostics under this Section 4.1.1 is ninety (90) days after the effective date of, hereinafter referred to as a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective"Demand Request."
Appears in 2 contracts
Sources: Warrant Purchase Agreement (Tripath Imaging Inc), Warrant Purchase Agreement (Tripath Imaging Inc)
Demand Registration. (a) If the Company shall receive, at any time following completion after the earlier of (i) the effective date of the Initial Public Offeringregistration statement for a Qualified IPO or (ii) October 14, subject to 2023, a written request from the terms record Holder(s) of any “locka majority of the shares of Preferred Stock then outstanding, including Common Stock issued on conversion of Preferred Stock, and the shares of Conversion Common Stock then outstanding, voting together (on a combined and as-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”if converted basis) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting ShareholderInitiating Holders”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the file a registration statement under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On OfferingRegistration Request”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following shall:
(i) within 10 days of the date receipt of receipt by the Company Registration Request, give written notice of such request give notice of to all Holders that such Demand registration is to be effected (the “Registration at least fifteen Notice”); and
(10ii) days after receipt of such Demand Registration use its best efforts to the other Shareholders, if any, and thereupon shall (i) effect as soon as practicable, and in any event within forty five 90 days of the receipt of the Registration Request, the registration under the Securities Act of all Registrable Securities that the Holders request to be registered in the Registration Request and such additional Registrable Securities for which it has received written requests to register by such other Holders within 45 days after delivery of the Registration Notice, subject to the limitations of subsection 1.2(b).
(45b) days If the Company is required to use Form S-1 (or similar forms promulgated after the date hereof), the Demand Registration is given by Company shall be obligated to (i) proceed with filing the Requesting Shareholder, file a registration statement under only if the Securities Act, registration to be effected pursuant to the Registration Request has anticipated aggregate gross offering proceeds of at least $10,000,000 and (ii) use its commercially reasonable efforts prepare, file and cause to effectbecome effective, as expeditiously as possible, and in any event within one hundred twenty (120) days after at the date the Demand Registration is given by the Requesting Shareholder, the effectiveness sole expense of the registration statementCompany, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations registration statements on Form S-1 (or similar forms promulgated after the date hereof) pursuant to Registration Requests made under this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), 1.2. Once the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders has prepared, filed and the number of shares of Registrable Securities requested caused to be included therein. At any time prior to the become effective date of the registration statement relating to such registrationtwo (2) registrations on Form S-1, the Requesting Shareholder may revoke such requestat its sole expense, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, it shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall still be obligated to pay all Registration Expenses comply with this Section 1.2, but the expense of any such registration shall be borne by the Holders participating in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestregistration.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends Initiating Holders intend to distribute the Registrable Securities covered by their such request by means of an underwriting, they shall so advise the Company as a part of their request pursuant to section 2.01, Registration Request and the Company shall include such information in their notice to the Registration Notice. The underwriter will be selected by the Company and a majority in interest of the Initiating Holders. Notwithstanding any other Shareholders. If a Demand Registration involves an underwritten Public Offering and provision of this Section 1.2, if the managing underwriter advises the Company and participating Holders in writing that marketing factors require a limitation of the Requesting Shareholder thatnumber of shares to be underwritten, in its view, then the number of shares of Registrable Securities requested that may be included in the underwriting shall be allocated pro rata among all participating Holders according to the total amount of securities entitled to be included therein owned by such Holders; provided, however, that the number of shares of Registrable Securities to be included in such registration underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.
(including any securities that d) Notwithstanding the foregoing, if the Company proposes shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 within thirty (30) days of the Registration Request a certificate signed by the President and Chief Executive Officer of the Company stating that (i) the Company pursuant to an action approved by the Board already has a present plan to commence preparation of a registration statement, other than a Special Registration Statement, and to file the same within ninety (90) days, or (ii) in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be included that are not Registrable Securities) exceeds filed on or before the largest number date filing would be required and it is therefore essential to defer the filing of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”)registration statement, the Company shall include have the right to defer taking action with respect to such filing for a period of not more than 60 days from the date of the certificate required herein; provided, however, that the Company may not utilize this right more than twice in any 12-month period.
(e) In the event that the Holders of a majority of the Registrable Securities for which registration has been requested pursuant to this Section 1.2 determine for any reason not to proceed with a registration at any time before a registration statement has been declared effective by the Commission, and such registrationregistration statement, if theretofore filed with the Commission, is withdrawn with respect to the Registrable Securities covered thereby, and, unless the withdrawal is based on a material adverse change in the priority listed belowcondition, up business or prospects of the Company from that known to the Maximum Offering Size:
(i) firstHolders at the time of their registration request, all the Holders of such Registrable Securities requested agree to be included bear their own expenses incurred in connection therewith and to reimburse the Company for the expenses incurred by it attributable to the registration of such registration by all Registering Shareholders (allocatedRegistrable Securities, and, if necessary for such Holders in fact so reimburse the offering not to exceed Company, then the Maximum Offering Size, pro rata among Holders of such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually not be agreed deemed to by all such Registering Shareholders); and
(ii) second, any securities proposed have exercised their right to be registered by require the Company (including for the benefit of any other Persons not party to register Registrable Securities pursuant to this Agreement)Section 1.2.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.01 1.2:
(i) during the period that is thirty (30) days before the Company’s good faith estimate of starting with the date of filing of, and ending on a date that is ninety (90) 180 days after the effective date of, a registration filed in connection with the Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), ’s Qualified IPO of its Common Stock; provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective; or
(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 1.11 below.
(g) If, at the time a Registration Request is received by the Company, the Company has already determined to proceed with the actual preparation and filing of a registration statement under the Securities Act in connection with the Company’s proposed offer and sale for cash of its securities, the Registration Request shall be deemed to have been given pursuant to Section 1.3 rather than this Section 1.2, and the rights and obligations of the Holders and the Company with respect to the Registration Request shall be governed by Section 1.3 hereof.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Intuity Medical, Inc.), Investors’ Rights Agreement (Intuity Medical, Inc.)
Demand Registration. (a) If Subject to the limitations contained in SECTION 5 and SECTION 6, at any time following completion July 15, 2000 as Holders of not less than a majority of the Initial Public Offering, subject issued and outstanding shares of Preferred Stock (the "DEMAND PERCENTAGE") shall give written notice to the terms Company requesting the registration of any “lock-up” agreement entered into with one or more underwriters (unless waived the transfer of such number of shares of Preferred Stock as shall be requested by such underwriter(srequesting Holder or Holders (the "DEMAND NOTICE")), and thereupon, the Company shall receive a request (each such request shall be referred to herein shall, as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein expeditiously as the “Requesting Shareholder”)possible, holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts prepare and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after Act covering the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included shares specified in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii)Notice, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in use its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable best efforts to cause such registration statement to become effective, all in accordance with the provisions of this Agreement; PROVIDED that, subject to the provisions of SECTION 3(c) hereof, the Company shall be obligated to effect registration pursuant to this SECTION 3(a) no more than once.
(b) Whenever the Company shall have received a demand pursuant to SECTION 3(a) above to effect the registration of any shares, the Company shall promptly give written notice to each other Holder and allow each such Holder the opportunity to participate in such registration. Each such Holder may, within ten (10) days after receipt of such notice, request in writing that all of such Holder's shares, or any portion thereof designated by such Holder, be included in the offering.
(c) The Company shall proceed as expeditiously as possible after receipt of a demand pursuant to SECTION 3(a) above to file a registration statement and use its best efforts to effect, within ninety (90) days of the date of the Demand Notice, the registration of an offering under the Securities Act, such registration statement to be declared effective by the Commission not later than one hundred and eighty (180) days from the date of such Demand Notice under this SECTION 3. Such offering shall include:
(i) the shares specified in the Demand Notice given pursuant to SECTION 3(a) above; and
(ii) all shares that other Holders have requested be included in the offering pursuant to SECTION 3(b) above; all to the extent required to permit the Holders to dispose of such shares in compliance with applicable law; PROVIDED HOWEVER, that if the managing underwriter of any such offering shall have determined that the inclusion of any shares pursuant to SECTION 3(b) above shall adversely affect the price, terms or number of securities to be underwritten and sold on behalf of the Holders initiating such demand registration pursuant to SECTION 3(a) above, then (x) the Company shall not be required to register any Securities pursuant to this Section 3 until such time as the Holders inform the Company that (1) such offering will not be an underwritten offering or (2) the managing underwriter has agreed that the inclusion of shares pursuant to SECTION 3(b) shall not adversely affect the price, terms or number of securities to be underwritten and sold on behalf of the Holders initiating such demand registration and (y) the Holders of the Demand Percentage shall be entitled to require the Company to file a registration statement with respect to the Securities notwithstanding the previous exercise of the rights of such Holders pursuant to this Section 3.
(d) A registration statement filed pursuant to this SECTION 3 shall remain effective until the first to occur of (i) the sale of all of the shares registered under such registration statement or (ii) the date two years following the date such registration statement was declared effective by the Commission, excluding any periods during which the Commission shall have issued any stop order with respect to such registration statement. If the registration statement is part of a shelf offering, the Company shall be obligated to keep such registration statement effective for a period of not less than two years.
(e) The Holders electing to participate in such offering shall have the right to select the managing underwriter to be engaged in connection with any such registration subject to the approval of the Company (which approval shall not be unreasonably withheld). Any such underwriter shall be a member firm of the New York Stock Exchange with a net capital of at least One-Hundred Million Dollars ($100,000,000).
(f) If, at any time prior to the effectiveness of the registration statement referred to in this SECTION 3, the Holders initiating the Demand Notice in SECTION 3(a) above elect to withdraw such registration statement prior to its date of effectiveness, the Company shall promptly withdraw such registration statement prior to its effectiveness and such withdrawing Holders shall forfeit the foregoing demand registration rights referred to in SECTIONS 3(a) AND (b) above. Notwithstanding the foregoing, the demand registration rights referred to in SECTIONS 3(a) OR (b) above shall survive a pre-effectiveness election to withdraw as set forth in this SECTION 3(f), if either (i) such withdrawing Holders reimburse the Company for all of its Registration Expenses in connection with the preparation of such withdrawn registration statement or (B) the non-demanding Holders elect to replace the withdrawing Holders (in which event such non-demanding Holders shall have been deemed to have exercised their demand registration right).
(g) To the extent that any Holders electing a demand registration determine as of the contemplated offering date not to sell their shares pursuant to an underwritten offering and such Holders do not reimburse the Company for Registration Expenses in the event that no Registration Statement is declared effective, such Holders are nonetheless entitled to have their shares registered pursuant to a "shelf registration" for the time period set forth in SECTION 3(d) above.
(h) The Company recognizes that money damages may be inadequate to compensate the Holders for a breach by the Company of its obligations under this Section, and the Company agrees that in the event of such a breach the Holder may apply for an injunction of specific performance or the granting of such other equitable remedies as may be awarded by a court of competent jurisdiction in order to afford the Holder the benefits of this SECTION 3 and that the Company shall not object to such application, entry of such injunction or granting of such other equitable remedies on the grounds that money damages will be sufficient to compensate the Holder.
Appears in 1 contract
Demand Registration. (a) If at any time Commencing six (6) months following completion the consummation of the Initial Public OfferingMerger, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder Holder or group of Shareholders (Holders holding, in the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”)aggregate, holding at least thirty thirty-five percent (3035%) or more of the Registrable Securities then outstandingissued and outstanding (the “Outstanding Amount”) shall have the right, that by written notice given to the Company effect (a “Demand Notice”), to request the registration Company to register under and in accordance with the provisions of the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt designated by the Company of such Holder(s). Each request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless shall be in writing and shall specify the approximate aggregate proceeds expected to be received from the sale number of the Registrable Securities requested to be included registered (which aggregate number of Registrable Securities must have a value equal to at least $10,000,000 based on the closing price of such securities on the last trading day prior to the date of such request or, in such Demand Registration equals or exceeds $10,000,000the case no closing price is available, at the anticipated price offered to the public and the intended method of distribution. In no event shall the Company be required obligated to effect effectuate more than two (2) Demand Registrations pursuant to this Section 2.01nor more than one (1) in any twelve month period.
(b) Promptly after the expiration Upon receipt of the seven-Business Day period referred to in Section 2.01(a)(ii)a Demand Notice, the Company will shall promptly (and in any event within ten (10) Business Days from the date of receipt of such Demand Notice), notify all Registering Shareholders other Holders, if any, of the identities receipt of such Demand Notice and allow them the other Registering Shareholders opportunity to include Registrable Securities held by them in the proposed registration by submitting their own Demand Notice. In connection with any Demand Registration in which more than one Holder participates, in the event that such Demand Registration, including any Shelf Takedown thereunder, involves an underwritten offering and the number of shares managing underwriter or underwriters participating in such offering advise in writing the Holders of Registrable Securities requested to be included thereinin such offering that the total number of Registrable Securities to be included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Registrable Securities to be sold), then the Registrable Securities to be offered shall be distributed amongst the participating Holders according to each Holder’s overall percentage of ownership in the Company. At any time prior In the event of such a pro-rata distribution, to the effective date of extent that any Holder (or Holders) has not submitted a Demand Notice, or withdraws from the registration statement relating to such registrationunderwriting, the Requesting Shareholder may revoke such request, without liability, by providing a notice then those Registrable Securities that would have been allocated pro-rata to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, non-participating Holder if they had participated shall be considered distributed amongst the participating Holders, pro rata according to be a Demand Registration unless (i) such revocation arose out each participating Holder’s overall percentage of ownership in the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestCompany.
(c) The Company, within sixty (60) days of the date on which the Company receives a Demand Notice given by Holders in accordance with Section 3(a), shall file with the SEC, and the Company shall thereafter use its reasonable best efforts to cause to be liable declared effective as promptly as practicable, a Registration Statement on the appropriate form for the registration and shall pay all Registration Expenses sale, in connection accordance with any the intended method or methods of distribution, of the total number of Registrable Securities specified by the Holders in such Demand Notice (a “Demand Registration”). Any Demand Registration may, regardless at the request of whether such the Holders submitting the Demand Notice, be a Shelf Registration to the extent the Company is effected, unless eligible to use the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b)relevant form for a Shelf Registration.
(d) A Demand The Company shall use its commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 3 continuously effective and usable for the resale of the Registrable Securities covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period of one hundred twenty (120) days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of a Shelf Registration, for a period of three (3) years from the date on which the SEC declares such Registration Statement effective, or, in either case (x) until such earlier date as all of the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement, and (y) as such period may be extended pursuant to this Section 3. The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods and all Interruption Periods occurring with respect to such Registration and such period and any extension thereof is hereinafter referred to as the “Effectiveness Period”. If any Registrable Securities remain issued and outstanding after thirty (30) full months following the initial effective date of a Shelf Registration filed pursuant to this Section 3, upon the request of Holder(s) of at least ten percent (10%) of the Registrable Securities then issued and outstanding, the Company shall, within thirty (30) days of such request, file a new Shelf Registration and shall thereafter use its reasonable best efforts to cause to be declared effective as promptly as practical, such new Shelf Registration; any such new Shelf Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective a new Demand Registration for a period of at least 180 days (or such shorter period in which all Registrable Securities purposes of the Registering Shareholders included limitation set forth in such registration have actually been sold thereunderthe final sentence of Section 3(a), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If The Company shall be entitled to postpone the Requesting Shareholder intends filing of any Registration Statement otherwise required to distribute be prepared and filed by the Company pursuant to this Section 3, or suspend the use of any effective Registration Statement under this Section 3, for a reasonable period of time, if the Board of Directors of the Company determines in the Board of Directors’ reasonable good faith judgment that the registration and distribution of the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested or to be included in covered by such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
Registration Statement would (i) firstmaterially interfere with any pending material financing, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedacquisition, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholderdisposition, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction reorganization involving the Company or any of its subsidiaries, taken as a whole, (ii) effecting the registration would require the premature disclosure of material information that thereof, or (iii) be seriously detrimental to the Company has a bona fide business purpose to preserve as confidential. In additionand its shareholders, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause which such registration statement to become effective.determination
Appears in 1 contract
Sources: Registration Rights and Lock Up Agreement (Stratasys Ltd.)
Demand Registration. 2.1 At any time following the third anniversary of the Closing (the "Demand Period"), TIC and each of S, Alliance and Macronix, may request in writing that all or part of their Registrable Securities be registered under the Securities Act and/or listed so as to be eligible for public trading on any securities exchange on which the Ordinary Shares are otherwise traded (a "Demand"); provided, however, the initiation of such a Demand may not be made by a Holder that holds under 1,500,000 Ordinary Shares. In addition, at any time during the Demand Period, members of the Purchaser Group holding a majority of the Purchaser Group Registrable Securities may jointly initiate an additional Demand. Notwithstanding the foregoing, in the event that, pursuant to Section 5.3 of the Additional Purchase Obligation Agreement, a member of the Purchaser Group that holds at least 800,000 Ordinary Shares does not exercise any of its Additional Purchase Obligations, the right of such member of the Purchaser Group to initiate a Demand shall be accelerated to the tenth day after the date upon which the event giving rise to the right of such member of the Purchaser Group not to exercise the Additional Purchase Obligation occurs. Upon receipt of a Demand of a member or members of the Purchaser Group, the Company will promptly give written notice of such Demand to TIC and to all other members of the Purchaser Group and the Company shall effect the registration of all Registrable Securities for which registration has been requested including Registrable Securities which the Company has been requested to register by TIC or members of the Purchaser Group by written request given to the Company within 30 days after the giving of such written notice by the Company. The Company shall use its best efforts to have a Demand become effective by the 60th day after a member of the Purchaser Group makes such Demand and, shall keep such Demand effective until the distribution of such Registrable Securities registered pursuant thereto is complete, if underwritten, or, otherwise, for 180 days. Upon receipt of a Demand of TIC, the Company will promptly give written notice of such Demand to all members of the Purchaser Group and the Company shall effect the registration of all Registrable Securities for which registration has been requested including Registrable Securities which the Company has been requested to register by members of the Purchaser Group by written request given to the Company within 30 days after the giving of such written notice by the Company. The Company shall use its best efforts to have a Demand become effective by the 60th day after TIC makes such Demand and, shall keep such Demand effective until the distribution of such Registrable Securities registered pursuant thereto is complete, if underwritten, or, otherwise, for 180 days.
2.2 In the event of a Demand by a member or members of the Purchaser Group in which the registration of Registrable Securities is underwritten and the managing underwriter of the offering advises the members of the Purchaser Group and TIC in writing that marketing factors require a limitation of the number of shares to be underwritten, then there shall be excluded from such registration and underwriting to the extent necessary to satisfy such limitation, first shares which the Company may wish to register for its own account or for the account of other shareholders of the Company, and then shares held by TIC, and then shares held by the members of the Purchaser Group on a pro rata basis to the number of shares that each member of the Purchaser Group included in the Demand. In the event of a Demand by TIC in which the registration of the Registrable Securities is underwritten and the managing underwriter of the offering advises TIC and the members of the Purchaser Group in writing that marketing factors require a limitation of the number of shares to be underwritten, then there shall be excluded from such registration and underwriting to the extent necessary to satisfy such limitation, first shares which the Company may wish to register for its own account or for the account of other shareholders of the Company, and then shares held by the members of the Purchaser Group on a pro rata basis to the number of shares that each member of the Purchaser Group included in the Demand, and then shares held by TIC. In the event that, following a receipt of a request by the members of the Purchaser Group and/or TIC, as the case may be, as detailed above, the managing underwriter advises the Company that due to marketing factors the shares requested to be registered for trading could not be sold, and accordingly the Company does not effect a registration statement, then such request by the members of the Purchaser Group and/or TIC, as the case may be, shall not be considered a Demand under this Section 2.
2.3 Any registration proceeding begun pursuant to Section 2.1 that is subsequently withdrawn at the request of the members of the Purchaser Group that initiated such registration proceeding and/or TIC, as the case may be, shall count toward the quota of registration statements which the members of the Purchaser Group and/or TIC, as the case may be, have the right to Demand pursuant to Section 2.1; provided, however, that such withdrawn registration shall not be so counted as a Demand if such withdrawal is based upon (a) If material adverse information relating to the Company or its condition, business or prospects which is different from that generally known to the member(s) of the Purchaser Group that were to participate in such registration proceeding, in the event of a Demand by a member or members of the Purchaser Group and/or TIC, in the event of a Demand by TIC, as the case may be, at the time of its request or (b) general securities market conditions which are different from that generally known to the member(s) of the Purchaser Group that were to participate in such registration proceeding, in the event of a Demand by a member or members of the Purchaser Group and/or TIC, in the event of a Demand by TIC, as the case may be, at the time of its request, provided, in connection with this clause (b), that the member(s) of the Purchaser Group that were to participate in such registration proceeding, in the event of a Demand by a member or members of the Purchaser Group and/or TIC, in the event of a Demand by TIC, as the case may be, reimburse the Company for its expenses incurred in connection with effecting such withdrawn registration.
2.4 The Company may not cause any other registration of securities for sale for its own account (other than a registration of securities to be offered to employees, directors or consultants pursuant to a benefit plan on Form S-8 or a registration in connection with a merger, an exchange offer or any acquisition) to be initiated after a registration requested pursuant to Section 2.1 and to become effective less than 180 days after the effective date of the registration requested pursuant to Section 2.1.
2.5 Notwithstanding the other provisions of this Section 2, in the event that at any time following completion during the Demand Period the Company shall receive from a Holder, or a group of Holders, a written request that the Initial Public Offering, subject Company effect a registration on Form F-3 (or any equivalent or successor form) with respect to Registrable Securities (the terms "F-3") where the aggregate net proceeds from the sale of any “lock-up” agreement entered into with one or more underwriters such Registrable Securities equals at least three million United States Dollars (unless waived by such underwriter(s)US$3,000,000), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least will within twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of any such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholderrequest, file a such registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with qualifications and compliance as may be so requested and as would permit or facilitate the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after sale and distribution of all or such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) portion of the Registrable Securities so as are specified in such request, and use its best efforts to be registeredhave such registration on Form F-3 effective by the 60th day after the Holder, provided thator group of Holders, make such request and keep such registration on Form F-3 effective until the distribution is complete, if underwritten, or, otherwise, for 270 days; provided, however, that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected file any such registration, qualification or compliance, pursuant to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall this Section 2.5 if the Company has, within the 180 day period preceding the date of such request, already effected one (1) registration for a requesting Holder pursuant to this Section 2.5. The Company undertakes that it will use its best efforts to continue to comply with all necessary filings and other requirements so as to maintain its qualification to use Form F-3.
2.6 The Company shall not be required to effect more than two three (23) Demand Registrations registrations initiated by TIC under Section 2.1. The Company shall not be required to effect more than one (1) registration initiated by each of S, Alliance and Macronix under Section 2.1 and one (1) additional registration jointly initiated by members of the Purchaser Group holding a majority of the Purchaser Group Registrable Securities under Section 2.1. Concurrent registrations in respect of multiple exchanges shall be construed as a single registration for the purposes of this Section 2.6.
2.7 The Company shall have the right to defer filing a registration statement (a "Registration Deferral") under the Securities Act pursuant to this Section 2.01.
2 not more than once in any 12-month period if (bi) Promptly after the expiration Board of Directors of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to shall determine that it would be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice seriously detrimental to the Company revoking to file such request. Notwithstanding clause (d) belowregistration statement at the date the filing would otherwise be required under this Agreement, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses Board of Directors of the Company for all Registration Expenses determines in good faith that (A) the Company is in possession of material, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or other than the expenses set forth under clause (v) material transaction by or of the definition of the term Registration ExpensesCompany or concerning pending or threatened litigation and (B) disclosure of such revoked requestinformation would jeopardize any such transaction or litigation or otherwise materially harm the Company.
(c) The Company 2.8 A Registration Deferral shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless end by the date that is 90 days from the date of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered determination by the Company (including for the benefit "90/th/ Day"), or, in the case described in Section 2.7(ii) above, the earlier of the 90/th/ Day and the date such material information is disclosed to the public or ceases to be material, such transaction is completed or abandoned or such litigation is settled or finally determined. In the event a Registration Deferral is instituted, the members of the Purchaser Group and/or TIC, as the case may be, shall be entitled to withdraw such request. If such request is withdrawn, such registration shall not count as one of the permitted registrations under this Section 2. The Company shall promptly notify the members of the Purchaser Group and/or TIC of the expiration or earlier termination of any other Persons not party to this Agreement)Registration Deferral.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Demand Registration. If, (ai) If at any time following completion after October 11, 2005, or (ii) prior to October 11, 2005 in the event of a CHANGE OF CONTROL or INSOLVENCY PROCEEDINGS as those terms are defined in the Purchase Agreement, the Purchaser shall request the Company in writing to register under the Securities Act of 1933, as amended (the "SECURITIES ACT"), any shares of the Initial Public OfferingCommon Stock, par value $0.001, of the Company (the "COMMON STOCK") issuable upon conversion of the Series A Non-Voting Convertible Preferred Stock, par value $0.001 (the "PREFERRED STOCK") and, if required by the Securities and Exchange Commission (the "SEC"), the shares of Preferred Stock owned by the Purchaser (the shares of Common Stock and, if applicable, Preferred Stock subject to such request being herein referred to as the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)"SUBJECT STOCK"), the Company shall receive use its reasonable best efforts to cause the shares of Subject Stock specified in such request to be registered as soon as reasonably practicable so as to permit the sale thereof, and in connection therewith shall prepare and file a request Form S-3 registration statement or such other form as is then available (or any successor form of registration statement to such Form S-3 or other available registration statement) with the SEC under the Securities Act to effect such registration; PROVIDED, HOWEVER, that each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and specify the number of shares of Registrable Securities requested Subject Stock intended to be included therein. At offered and sold, (ii) express the present intention of the Purchaser to offer or cause the offering of such shares of Subject Stock for distribution, (iii) describe the nature or method of the proposed offer and sale thereof, and (iv) contain the undertaking of the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any time prior to desired acceleration of the effective date of the such registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such requeststatement. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration Purchaser shall not be deemed entitled to have occurred unless the request more than one demand registration statement relating thereto (i) has become effective under this Agreement in any twelve-month period, and the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration Purchaser shall not be deemed entitled to have occurred if, after such more than a total of two requests for demand registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 statements pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Registration Rights Agreement (American Millennium Corp Inc)
Demand Registration. (a) If In the event the Company receives at any time following completion of the Initial Public Offeringafter August 31, subject to the terms of any “lock-up” agreement entered into with 1997 a written request from one or more underwriters (unless waived by such underwriter(s)), WS Holders holding in the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group aggregate at least seventy-six percent of Shareholders the number of shares of Warrant Stock then outstanding (the requesting Shareholder(s"Demanding Holders") shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after Act for the date the Demand Registration is given by the Requesting Shareholder, the effectiveness sale or other disposition of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) at least a majority of the Registrable Securities so to be registered, provided that(a "Demand Registration"), the Company shall not be obligated promptly give written notice of such request to effect a Demand Registration unless each other WS H▇▇▇▇▇ ▇▇▇ each such WS H▇▇▇▇▇ ▇▇▇ elect, by giving written notice of such election to the aggregate proceeds expected Company within ten (10) Business Days after receipt of the Company's notice, to be received from the sale have some or all of the Registrable Securities requested to be held by it included in such Demand Registration equals registration. At the option of the Demanding Holders, such request may specify that the requested registration will be for an offering on a delayed or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations continual basis pursuant to this Section 2.01Rule 415 under the Securities Act (a "Shelf Registration").
(b) Promptly after the expiration Following receipt of the seven-Business Day period referred to in Section 2.01(a)(ii)such a request for a Demand Registration, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.shall:
(c) The Company shall not be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless required to effect a registration of whether such Registration is effected, unless the Requesting Shareholder elects Registrable Securities pursuant to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A a Demand Registration on more than one occasion. For purposes of this Subsection (c), registration shall not be deemed to have occurred unless the registration statement relating thereto been effected (i) unless a registration statement with respect thereto has become effective under the Securities Act and effective, (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, if after such registration statement becomes has become effective, such registration statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or courtcourt for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated or (iii) 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 Selling Holders. If the Company shall have complied with its obligations under this Section 9, a right to demand a registration pursuant to this Section 9.2 shall be deemed to have been satisfied (i) if a Demand Registration other than a Shelf Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to the registration statement and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of 90 days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or
(d) The Company shall be entitled to postpone for up to 90 days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 9.2 or suspend any such Demand Registration for up to 90 days, if the Board of Directors of the Company determines, in its good faith reasonable judgment that such registration and the Transfer of Warrant Stock contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Subsection (d) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 9.2, or suspended any such Demand Registration, during the 12 month period ended on the date of the relevant request pursuant to Subsection (a) above and provided further, that the Expiration Date shall be extended by the period of any such postponement or suspension.
(e) If A registration pursuant to this Section 9.2 shall be on such appropriate registration form of the Requesting Shareholder intends Commission available to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as part shall (i) be selected by the Company and be reasonably acceptable to the Majority Selling Holders and (ii) permit the disposition of their the Warrant Stock in accordance with the intended method or methods of disposition specified in the request made pursuant to section 2.01, and the Company shall include such information in their notice to the other ShareholdersSubsection (a) above. If a Demand Registration any registration pursuant to this Section 9.2 involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder thatoffering (whether on a "firm", in its view"best efforts" or "all reasonable efforts" basis or otherwise), or an agented offering, the number Majority Selling Holders shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering from among the entities listed in Schedule B hereto (or any successors of shares of Registrable Securities requested to be included in any such registration (including any securities entities), it being understood that the Company proposes Majority Selling Holders shall use commercially reasonable efforts to be included that are not Registrable Securities) exceeds select one or more of the largest number of shares that can be sold without having an adverse effect on such offering, including the price first three listed entities subject to arriving at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary reasonably acceptable terms and conditions for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)offering.
(f) The Company may postpone effecting a registration pursuant elect to this Section 2.01 on two occasions during any period include shares of twelve consecutive months Common Stock to be sold for a reasonable time specified in the notice but not exceeding 90 days in the aggregate its account in any period of twelve consecutive months such Demand Registration (which period may not be extended or renewedincluding a Shelf Registration); provided, however, if the Company furnishes managing underwriter shall advise the Demanding Holders in writing (with a copy to the Requesting Shareholder a certificate signed by Company) that, in its opinion, the Company’s chief executive officer stating that (i) effecting number of shares of Common Stock requested to be included in such Demand Registration would adversely affect such offering or the registration would materially and adversely interfere with a significant acquisition, corporate reorganizationprice to be realized therefor, or other similar transaction involving the Company or (ii) effecting timing thereof, then the registration would require the premature disclosure number of material information that the Company has a bona fide business purpose shares proposed to preserve as confidential. In addition, be included in such Demand Registration by the Company shall not be obligated reduced, to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided such number that the Company is actively employing Demanding Holders are advised can be sold without such effect in good faith commercially reasonable efforts to cause such registration statement to become effectiveDemand Registration.
Appears in 1 contract
Sources: Warrant Agreement (Norand Corp /De/)
Demand Registration. (a) If at At any time following completion on or after the date of the Initial Public Offeringthis Agreement, subject to the terms of any “lock-up” agreement entered into with if one or more underwriters Holders that own an aggregate of a majority of the Registrable Securities Then Outstanding shall make a written request to the Company (unless waived by such underwriter(s)the "Demanding Holders"), the Company shall receive cause there to be promptly filed with the Commission a registration statement meeting the requirements of the Securities Act (a "Demand Registration"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.6) all or such number of Registrable ----------- Securities as such Demanding Holder shall request in writing; provided, however, -------- ------- that no request may be made pursuant to this Section 2.1 if within nine (each 9) ----------- months prior to the date of such request a Demand Registration pursuant to this Section 2.1 shall have been satisfied (as provided in Section 2.3). Any request ----------- ----------- made pursuant to this Section 2.1 shall be referred addressed to herein as the attention of the ----------- Secretary of the Company with a “copy to the President of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration”Registration pursuant to this Section 2.1(a). --------------
(b) from a Shareholder or group of Shareholders (the requesting Shareholder(s) The Company shall be referred entitled to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) postpone for up to 120 days from receipt of the written request for a Demand Registration the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith ----------- reasonable judgment, that such registration and the Transfer of Registrable Securities then outstandingcontemplated thereby would materially interfere with, or require premature disclosure of, (a) any financing, acquisition or reorganization involving the Company or any of its material wholly owned subsidiaries or (b) any other material contract under active negotiation by the Company or any of its subsidiaries, disclosure of which is prohibited by applicable regulation, and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company effect shall not have postponed -------- -------
2.1 during the 6 month period ended on the date of the relevant request pursuant --- to Section 2.1(a); and provided further that the Company shall file any -------------- -------- ------- ---- registration statement postponed pursuant to this Section 2.1(b) as soon as -------------- reasonably practicable following the cessation of the conditions specified in clauses (a) or (b) of this Section 2.1(b) if prior to the expiration of the 120- -------------- day period.
2.2. Following receipt of a request for a Demand Registration, the Company shall:
(a) File the registration statement with the Commission as promptly as practicable, and shall use the Company's reasonable best efforts to have the registration statement declared effective under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities andas soon as reasonably practicable, in each caseinstance giving due regard to the need to prepare current financial statements, specifying conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(b) Use the intended method Company's reasonable best efforts to keep the registration statement Continuously Effective for up to 120 days or until such earlier date as of disposition thereofwhich all the Registrable Securities included in the registration statement shall have been disposed of in the manner described in the registration statement. Notwithstanding the foregoing, then if for any reason the effectiveness of a registration statement pursuant to this Section 2 is --------- postponed as permitted by Section 2.1(b), the foregoing period shall be extended -------------- by the aggregate number of days of such postponement.
(c) Whenever the Company shall as promptly as practicable following have received a demand pursuant to Section 2.1(a) to effect the date registration of receipt by any Registrable Shares, the Company of such request -------------- shall promptly give written notice of such Demand Registration at least fifteen proposed registration to all Holders and the NV Holders. Any Holder may, within thirty (1030) days after receipt of such Demand Registration to notice, request in writing that all of such Holder's Registrable Shares, or any portion thereof designated by such Holder, be included in the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:registration.
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the 2.3. The Company shall not be obligated to effect a more than ten (10) Demand Registration unless the aggregate proceeds expected to be received from the sale Registrations. For purposes of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii)preceding sentence, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto been effected (i) unless a registration statement with respect thereto has become effective under the Securities Act and effective, (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, if after such registration statement becomes has become effective, such registration statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or courtcourt for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) 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 Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied upon the earlier of (x) --------- the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to a registration statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of 120 days, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.4. The Company may, at its sole option, elect to satisfy a request for a Demand Registration on Form S-2 or Form S-3 promulgated under the Securities Act (or any successor forms thereto), if such forms are then available to the Company; provided, however, that the Majority Selling Holders -------- ------- or the Underwriters' Representative of the proposed offering shall have the right to require that the Company disclose in the registration statement and form of prospectus included therein the type of information that would be required in a Form S-1 registration statement if the Underwriters' Representative reasonably deems such disclosure to be advisable in order to successfully market the securities intended to be sold in such offering.
2.5. If any registration pursuant to Section 2 involves an --------- underwritten offering (whether on a "firm," "best efforts" or "all reasonable efforts" basis or otherwise), or an agented offering, the Majority Selling Holders shall have the right to select the managing underwriter and lead manager to administer such underwritten offering or the lead placement agent for such agented offering; provided, however, that each Person so selected shall be -------- ------- reasonably acceptable to the Company; and provided, further, that the Company --------- ------- shall have the right to select a co-managing underwriter or co-manager to administer an underwritten offering and a co-placement agent if an agented offering, provided that each Person so selected by the Company shall be -------- reasonably acceptable to the Majority Selling Holders.
(ea) If With respect to any registration pursuant to this Section 2, the Requesting Shareholder intends --------- Company may include in such registration any Financing Securities, Primary Securities or Other Securities, including Other Securities held by the NV Holders; provided, however, that if the Underwriters' Representative or Agent advises the Company in writing (with a copy to distribute each Selling Holder) that the inclusion of all Registrable Securities of the Selling Holders, the Financing Securities, the Primary Securities and the Other Securities proposed to be included would materially interfere with the successful marketing (including pricing) of the Registrable Securities covered by their request by means of an underwritingproposed to be included in such registration, they shall so advise the Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, then the number of shares of Registrable Securities, Financing Securities, Primary Securities and Other Securities proposed to be included in such registration shall be included in the following order:
(i) If Financing Securities are included in the registration, then, (A) first, the Other Securities held by the ----- NV Holders requested to be included in such registration pursuant to the NV Registration Rights Agreement and all Financing Securities being registered pursuant to the exercise of contractual rights comparable to the rights granted in either this Section 2 or Section 3, pro rata based on the estimated --------- --------- gross proceeds from the sale thereof; (including any securities that the Company proposes to be included that are not Registrable SecuritiesB) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”)second, the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable ------ Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not Selling Holders pursuant to exceed the Maximum Offering Sizethis Section 2, pro rata among such Shareholders based on the basis of --------- estimated gross proceeds from the relative number of Registrable sale thereof; (C) third, all ----- Other Securities (except those Other Securities held by each such Shareholderthe NV Holders) being registered, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders)pro rata based on the estimated gross proceeds from the sale thereof; andand (D) fourth, the Primary ------ Securities.
(ii) If Financing Securities are not included in the registration, then (A) first, the Registrable Securities ----- requested to be included in such registration by the Selling Holders pursuant to this Section 2 and the Other Securities held --------- by the NV Holders requested to be included in such registration pursuant to the NV Registration Rights Agreement, (B) second, any securities proposed to be registered all ------ Other Securities (except those Other Securities held by the Company NV Holders) being registered, pro rata based on the estimated gross proceeds from the sale thereof; and (including for C) third, the benefit Primary ----- Securities. In the event of any other Persons not party a cutback, the allocation between the Selling Holders and the NV Holders shall be such that the Selling Holders, as a group, shall be able to this Agreement)include Registrable Securities in the registration equal to 21% of the amount of securities allocated to the Selling Holders and the NV Holders under clause (ii)(A) of the preceding sentence.
(fc) The Whenever the Company may postpone effecting shall effect a registration pursuant to this Section 2.01 on two occasions during any period 2 in connection with an underwritten offering by one or more Selling --------- Holders of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed)Registrable Securities, if such Selling Holders have requested the Company furnishes to inclusion therein of more than one class of Registrable Securities, and the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisitionUnderwriters' Representative or Agent advises each such Selling Holder in writing that, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In additionin its opinion, the Company shall not be obligated to effectinclusion of more than one class of Registrable Securities would adversely affect such offering, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate Demanding Holders holding at least a majority of the date Registrable Securities proposed to be sold therein by them shall decide which class of filing ofRegistrable Securities shall be included therein in such offering and the related registration, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveclass shall be excluded.
Appears in 1 contract
Sources: Registration Rights Agreement (Firearms Training Systems Inc)
Demand Registration. (a) If at any time Beginning on the date that is the earlier of (x) the 181st day following completion the pricing of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “FollowIPO”) (or such earlier date on which the underwriters in such offering have agreed for the lock-On Offering”), at least twenty percent up restrictions relating thereto to terminate) and (20%y) the fifth Business Day following the Company’s registration of the Common Stock under Sections 12 or 15(d) of the Requesting Shareholder’s Registrable Securities then outstanding Exchange Act (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000other than in connection with an IPO), one or (ii) after more Key Members may request that the completion of Company file a Registration Statement to effect the Follow-On registration and sale under the Securities Act, including a Public Offering, of all or any portion of the Requesting Shareholder’s Registrable Securities held by such requesting party or parties on Form S-1 or any successor thereto (a “Long-Form Registration”) or, if available, a Form S-3 or any successor thereto (a “Short-Form Registration” and, together with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”); provided, that demand for a Long-Form Registration or a Short-Form Registration that involves a Public Offering may not be made more than [six] times in each casetotal; provided, specifying further, that demand for a Long Form Registration may not be made more than [twice] in any consecutive 12-month period; provided, further, that any demand for a Long-Form Registration or a Short-Form Registration that involves a Public Offering shall only be made in circumstances in which the intended method aggregate gross proceeds (before deducting underwriting discounts and commissions) to be received by such requesting Member will be reasonably expected to exceed $[20] million.
(b) Such request for a Demand Registration shall be made by giving written notice to the Company (a “Demand Registration Notice”), which shall specify the number of disposition thereofRegistrable Securities required to be included in the Demand Registration and whether or not such Demand Registration will involve a Public Offering. Upon receipt of any Demand Registration Notice, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (but in no event later than ten (10) days after following receipt thereof) give written notice to all Members holding Registrable Securities of receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall Notice (i) as soon as practicable, and in any event within forty five (45) days after the date the a “Company Demand Registration is given by the Requesting ShareholderNotice”) and, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e)provisions of Section 10.05, all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included include in such Demand Registration equals or exceeds $10,000,000. In no event shall all Registrable Securities with respect to which the Company be required to effect more than two has received written requests for inclusion therein within ten (210) Demand Registrations pursuant to this Section 2.01.
(b) Promptly Business Days after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), sending the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestNotice.
(c) The Company shall be liable for use commercially reasonable efforts to prepare and shall pay all Registration Expenses in connection file with any Demand Registration(or confidentially submit to) the Commission, regardless within sixty (60) days after receipt of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days Notice (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is within thirty (30) days before in the case of the first Demand Registration Notice after the IPO, except where the Company’s good faith estimate of financial statements are stale pursuant to Regulation S-X, such 30-day period shall be extended until such time as the date of filing of, and ending on a date that is ninety (90) days after Company’s subsequent quarterly or annual report becomes due under the effective date ofExchange Act), a Company-initiated registration (other than a registration Registration Statement on Form S-8 or any successor or similar forms)S-1 or, provided that if applicable, Form S3 covering all Registrable Securities the Company is actively employing requesting Key Members and other Members have requested be included in good faith such Demand Registration and shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective and to commence the Public Offering, if applicable, as promptly as practicable. Demand Registrations shall be Short-Form Registrations whenever the Company is permitted to use any applicable short-form registration statement under the rules and regulations of the Securities Act, unless the underwriters, if any, in their reasonable discretion, determine that the use of a Long-Form Registration is necessary in order for the successful offering of such Registrable Securities.
(d) The initial requesting Key Members that beneficially own a majority of the Registrable Securities initially requested to become effectivebe included in the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such Public Offering. Notwithstanding the foregoing, any investment banking firm selected pursuant to this Section 10.01(d) will be subject to the reasonable approval of the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement
Demand Registration. (a) If at any time following completion of after the three (3) month anniversary after the Company’s Common Stock becomes subject to reporting requirements under the Exchange Act (whether through a Qualified Initial Public Offering, subject to a Pubco Transaction (as defined below) or otherwise, (the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(sStart Date”)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group whichever is earlier, Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty thirty-five percent (3035%) of the Registrable Securities then outstanding, outstanding request in writing that the Company effect the file a registration statement under the Securities Act (i) for covering the first Public Offering registration of at least 20% of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (Registrable Securities, or any a lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request will (i) give written notice of such Demand Registration at least fifteen the proposed registration to all other Holders within ten (10) days after of receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Actrequest, and (ii) use its commercially reasonable best efforts to effect, as expeditiously as possible, and in cause such shares to be registered (together with any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class any Holder or Holders joining in such request as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by are specified in a written request received by the Company Company) within seven Business Days after twenty (20) days of the mailing of such Shareholders receive written notice by the Company’s notice of the Demand Registration; provided, all to the extent necessary to permit the disposition however, that (in accordance with the intended methods thereof as aforesaida) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two any such registration (2i) Demand Registrations pursuant to this Section 2.01.
within one-hundred eighty (b180) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time days prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 one-hundred eighty (90180) days after following the effective date of, a registration statement pertaining to a direct or underwritten public offering of the Company-initiated registration (other than a registration on Form S-8 ’s securities in which Registrable Securities were or any successor or similar forms)will be registered; provided, provided that that, the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective, (ii) if, within thirty (30) days of receipt of the written request from the Holders pursuant to this Section 3.1, the Company gives notice to the Holders of the Company’s intention to make a public offering within sixty (60) days or (iii) if the Holders making the request 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 4 below,(b) if the Company furnishes the requesting Holders with a certificate of the President of the Company stating that in the good faith judgment of the Board of Directors it would be materially detrimental to the Company and its stockholders for a registration statement to be filed in the near future, such registration obligation shall be deferred for not more than ninety (90) days, but the Company shall not be entitled to such deferral more than once in any 12-month period and (c) the Company shall not be obligated to effect more than a total of two (2) demand registrations pursuant to this Section 3, and (d) the Company shall not be required to effect a registration 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 Company is already subject to service in such jurisdiction and except as may be required under the Act. Any such registration shall be firmly underwritten by an underwriter of nationally recognized standing which shall be mutually agreeable to the Company and a majority in interest of the Holders requesting the registration. If any Holder disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Holders making the request. The Registrable Securities so withdrawn shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a public distribution prior to ninety (90) days after the effective date of such registration; provided, however, that, if by the withdrawal of such Registrable Securities, a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration the right to include additional Registrable Securities. Holders shall be so entitled to include additional Registrable Securities in the registration upon written notice within ten (10) days of such offer being made.
Appears in 1 contract
Sources: Investor Rights Agreement (Hoth Therapeutics, Inc.)
Demand Registration. (a) If at At any time during the one-year period following completion the first anniversary of the Initial Public Offeringdate of this Agreement, subject the Holder shall have the right exercisable by written notice to the terms of any “lock-up” agreement entered into with one or more underwriters Company (unless waived by such underwriter(s)the "Demand Registration Request"), to have the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (prepare and file with the requesting Shareholder(s) shall be referred to herein as Commission, at the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering sole expense of the Company (except as herein after the completion of the Initial Public Offering (the “Follow-On Offering”provided), at least twenty percent in respect of up to 250,000 (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or as hereafter adjusted as necessary to reflect any lesser percentage if the anticipated aggregate offering pricestock split, net of underwriting discounts and commissionsreverse stock split, would exceed $10,000,000)recaptialization, or (ii) after other similar transaction affecting the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of such Registration Statement) of the registration statement relating Shares (less the number of shares previously registered pursuant to such registrationSection 1 above) a Registration Statement so as to permit a public offering and sale of the Shares for a period of nine months; provided that notwithstanding the provisions of Sections 1 and 2 hereof, the Requesting Shareholder Holder agrees not to sell or otherwise dispose of more than 925,000 shares during the two-year priod following the date of this Agreement, pursuant to a registration statement, Rule 144 under the Act, or otherwise.
(b) At any time during the one-year period following the second anniversary of the date of this Agreement, the Holder may revoke such request, without liability, by providing a notice submit to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of Request, to have the fault Company prepare and file with the Commission, at the sole expense of the Company (except as herein after provided), in which case respect of up to 925,000 (as hereafter adjusted as necessary to reflect any stock split, reverse stock split, recapitalization, or other similar transaction affecting the Company shall be obligated Shares prior to pay all the effective date of such Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (vStatement) of the definition Shares a Registration Statement so as to permit a public offering and sale of the term Shares for a period of nine months; provided that if the Holder intends to distribute the Shares by means of a "firm commitment" underwriting, then the Holder shall so notify the Company pursuant to the Demand Registration Expenses) of such revoked requestRequest. Any underwriter selected by the Holder shall be reasonably acceptable to the Company.
(c) The At any time during the one-year period following the third anniversary of the date of this Agreement, the Holder shall have the right to submit to the Company a Demand Registration Request, to have the Company prepare and file with the Commission, at the sole expense of the Company (except as herein after provided), in respect of up to the aggregate number of the Shares not previously registered pursuant to Section 1 or Section 2(a)), a Registration Statement so as to permit a public offering and sale of the Shares for a period of nine months; provided that if the Holder intends to distribute the Shares by means of a "firm commitment" underwriting, then the Holder shall so notify the Company pursuant to the Demand Registration Request. Any underwriter selected by the Holder shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless reasonably acceptable to the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b)Company.
(d) A Notwithstanding any provision of this Section 2 to the contrary, if, at the time a Demand Registration shall not be deemed Request is given to have occurred unless the registration statement relating thereto Company under Section 2 hereof (i) the Company is engaged in negotiations with respect to an acquisition, merger, financing or other material event which would require the Company to file a Form 8-K in the event that such acquisition, merger, financing or other material event is consummated or has become effective under the Securities Act and otherwise occurred or (ii) has remained effective in the event the Company shall furnish to the Holder a certificate signed by the chief executive officer of the Company stating that in the good faith judgment of the Company and its investment banker that it would be detrimental to the Company and its shareholders for the Company to immediately proceed with a registration statement and it is therefore essential to defer the filing of such registration statement, then, in each such case, the Company will have the right to defer such filing for a period of at least 180 days not to exceed one hundred and eighty (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court180) days.
(e) If the Requesting Shareholder intends to distribute the Registrable Securities covered by their request by means of an underwriting, they Nothing herein contained shall so advise require the Company as part of their request pursuant to section 2.01undergo an audit, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, than in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis ordinary course of the relative number of Registrable Securities held by each such Shareholderbusiness, or as required in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by connection with the Company (including delivery of a "comfort letter" for the benefit purposes of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to Registration Statement as set forth in this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective2.
Appears in 1 contract
Sources: Registration Rights Agreement (Take Two Interactive Software Inc)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject Subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))blackout provisions contained in Section 2.05, the Holders shall have the right to require the Company shall receive to file a request Registration Statement under the Securities Act (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, covering all or any portion part of their respective Registrable Securities, pursuant to a non-underwritten offering to be made on a continuous basis pursuant to Rule 415 of the Requesting Shareholder’s Securities Act, by delivering a written request therefor to the Company specifying the number of Registrable Securities and, to be included in each case, specifying such registration by such Holder or Holders and the intended method of disposition distribution thereof, then the Company shall as promptly . As soon as practicable following after the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to demand, the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) Company will use its commercially reasonable efforts to effecteffect such registration (including, as expeditiously as possiblewithout limitation, appropriate qualification under applicable blue sky or other state securities laws and in any event within one hundred twenty (120) days after appropriate compliance with applicable regulations issued under the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that Act and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidgovernmental requirements or regulations) of the Registrable Securities which the Company has been so requested to be registeredregister for distribution in accordance with such intended method of distribution; provided, provided thathowever, that the Company shall not be obligated to take any action to effect a any such Demand Registration unless the aggregate proceeds expected Registration, pursuant to be received from the sale this Section 2.01(a):
(i) if Registrable Securities corresponding to at least 25% of the originally issued Registrable Securities requested or having an aggregate market value of at least $5,000,000 (which market value shall be determined by multiplying the number of Registrable Securities to be included in such the Demand Registration equals or exceeds $10,000,000. In no event shall by the Company be required to effect more than two (2proposed per share offering price) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after are not included in the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and;
(ii) second, any securities proposed to be registered by during the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in starting with the notice but not exceeding 90 date 60 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes immediately prior to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate of the estimated date of filing of, and ending on a the date that is ninety 90 days (90or 180 days in the case of an underwritten public offering) days after immediately following the effective date of, a Company-initiated of any registration statement pertaining to securities issued for the account of the Company (other than a registration on Form S-8 of securities in a Rule 145 transaction or any successor or similar formswith respect to an employee benefit plan), ; provided that the Company is actively employing in good faith commercially all reasonable efforts to cause such registration statement to become effective; provided, further, that the Company shall not exercise such right more than once in any 12-month period; or
(iii) of any Registrable Securities if such Registrable Securities are then covered by an effective Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Hawaiian Holdings Inc)
Demand Registration. Promptly after the Closing Date (a) If at and in any event not later than the time following completion of filing any registration statement covering shares issuable upon conversion of the Initial Public OfferingCompany's outstanding 10% Senior Convertible Notes under the Note Purchase Agreement dated January 8, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)2001), the Company shall receive Mail.▇▇▇ ▇▇▇ees to prepare and file a request (each such request shall shelf registration statement on Form S-3 or other available form for an offering to be referred made on a continuous basis pursuant to herein as a “Demand Registration”) from a Shareholder or group of Shareholders Rule 415 (the requesting Shareholder(s"Registration Statement") shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) covering all of the Registrable Securities then outstanding, that and to use reasonable commercial efforts to cause the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration Statement to the other Shareholders, if any, and thereupon shall (i) become effective as soon as practicablepracticable thereafter (the "DEMAND REGISTRATION"); provided, and in any event within forty five however, (451) days after Mail.▇▇▇ ▇▇▇ delay the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the filing or effectiveness of the registration statement, in each case covering:
(i) subject to Registration Statement under the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under Act as required by this Section SECTION 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e)or any sales thereunder, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 up to sixty (60) days if Mail.▇▇▇ ▇▇ currently engaged in negotiating a material financing or acquisition or disposition or other material corporate transaction and the Board of Directors of Mail.▇▇▇ ▇▇▇ermines in good faith that such Demand Registration would be materially adverse to the interests of Mail.▇▇▇ ▇▇ connection with such financing, acquisition, disposition or other transaction; provided, however, that Mail.▇▇▇ ▇▇▇ not exercise this right more than twice in any twelve (or such shorter 12) month period and (2) in which all Registrable Securities of the Registering Shareholders included in such no event shall Mail.▇▇▇ ▇▇ required to file more than one registration have actually been sold thereunder)statement; provided, provided however, that if, after a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes has become effective, such registration statement the offering of Registrable Securities pursuant thereto is interfered with suspended, blocked by any stop order, injunction or other order or requirement of the SEC or other any governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01or withdrawn, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to will be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering deemed not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration have been effected pursuant to this Section 2.01 2.01. If the Registration Statement in connection with a Demand Registration shall not become effective on two occasions during any period of twelve consecutive months for a reasonable time specified in or before 120 days after the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months Closing Date, then Mail.▇▇▇ ▇▇▇ll pay to each such holder an amount equal to 1% per month (which period may not be extended or renewed), 2% per month if the Company furnishes to Registration Statement has not become effective initially on or before 240 days after the Requesting Shareholder a certificate signed Closing Date) of the principal amount of the Exchange Notes held by such holder (pro rated for partial months) from such 120th day or 240th day, as applicable, until the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate earlier of the date on which the Registration Statement becomes effective and the second anniversary of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that issuance of the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveExchange Notes.
Appears in 1 contract
Demand Registration. (a) If at any time following completion of The Investors shall have the Initial Public Offeringright, subject to compliance with the other terms of any “lock-up” agreement entered into with one or more underwriters this Agreement (unless waived by such underwriter(s)including, without limitation, Article IV hereof), by written notice (the "Demand Notice") given to the Company, to request the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (qualify and register under and in accordance with the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) provisions of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, Laws all or any portion of the Requesting Shareholder’s Registrable Securities andShares designated by the Investors; provided, however, that the bona fide estimated aggregate market value of Registrable Shares, requested to be registered or qualified pursuant to any Demand Notice shall be at least Canadian $50,000,000 or if less, the aggregate market value of the remaining Registrable Shares and the Investors shall, in each casethe form of written notice, specifying specify the intended method or methods of disposition thereofdisposition. Upon receipt of any such Demand Notice, then the Company shall as promptly as practicable following notify all other Investors of the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Notice and allow them the opportunity to include Registrable Shares held by them in the proposed registration or qualification by submitting their own Demand Notice. Unless the Investors otherwise agree, in connection with any Demand Registration in which more than one Investor participates, in the event that such Demand Registration involves an underwritten offering and the managing underwriter or underwriters participating in such offering advise in writing the Investors holding Registrable Shares to be included in such offering that the other Shareholderstotal number of Registrable Shares to be included in such offering exceeds the amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including the price per share of the Registrable Shares to be sold), if anythen the amount of Registrable Shares to be offered for the account of such Investors shall be reduced pro rata on the basis of the number of Registrable Shares to be registered by each such Investor. The Investors as a group shall be entitled to a total of five Demand Registrations (provided that no more than one Demand Registration shall be made during each consecutive 12-month period following the Effective Time) pursuant to this Article VI unless any Demand Registration does not become effective or is not maintained for a continuous period of at least 30 days (or such shorter period as shall terminate when all the Registrable Shares covered by such Demand Registration have been sold pursuant thereto), in which case the Investors will be entitled to an additional Demand Registration pursuant hereto during such 12-month period and thereupon such Demand Registration shall not be counted as one of the five Demand Registrations.
(ib) as soon As promptly as practicable, and but in any event within forty five (45) 30 days after of the date on which the Company receives a Demand Registration is Notice given by Investors in accordance with Section 6.01(a) hereof, the Requesting ShareholderCompany shall file with the SEC, file a and the Company shall thereafter use its best efforts to effect the qualification and registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness Laws of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder Company has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those been requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholdersso qualify and register for disposition, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended method or methods thereof as aforesaidof distribution (which may include a shelf registration), of the total number of Registrable Shares specified by the Investors in such Demand Notice (a "Demand Registration").
(c) The Company shall use commercially reasonable efforts to keep any Registration Statement filed pursuant to this Section 6.01 continuously effective and usable for the resale of the Registrable Securities so Shares covered thereby until the later of (i) 30 days from the later of the date on which the SEC declares such Registration Statement effective and the date the OSC issues a receipt for the Prospectus (such 30-day period, the "Exclusivity Period") and (ii) the date on which all the Registrable Shares covered by such Registration Statement have been sold pursuant to such Registration Statement (such period, the "Effectiveness Period"). The Company shall not make a primary issuance of, or effect, or announce an intention to effect, any public sale or distribution of any Common Shares or similar securities or securities convertible into, or exchangeable or exercisable for, such securities during the 10 days prior to the effective date of such Registration Statement and until the earlier of (a) the abandonment of such offering and (b) 90 days from the commencement of the Exclusivity Period.
(d) The Company shall be entitled to postpone the filing of any Registration Statement otherwise required to be registeredprepared and filed by the Company pursuant to this Section 6.01, provided thator, after the Exclusivity Period, suspend the use of any effective Registration Statement (other than in respect of previously issued Linked Shares) under this Section 6.01, for a reasonable period of time, but not in excess of 90 days after the date of any Demand Notice (a "Delay Period"), if the Board of Directors of the Company determines that in its reasonable judgment and good faith the registration and distribution of the Registrable Shares covered or to be covered by such Registration Statement would materially interfere with any pending material financing, acquisition or corporate reorganization or other material corporate development involving the Company or any of its subsidiaries or would require premature disclosure thereof which would jeopardize such transaction (it being agreed that the Company shall not be obligated effect a Delay Period hereunder in order to proceed with a primary issuance or effect, or announce an intention to effect a Demand Registration any public sale or distribution of any Common Shares or similar securities or securities convertible into, or exchangeable or exercisable for, such securities, unless the Company shall have previously given the Investors the notice and opportunity required by Section 6.02 hereof and is currently pursuing such issuance, sale or distribution) and promptly gives the Investors written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the period of the anticipated delay; provided, however, that (i) the aggregate proceeds expected number of days included in all Delay Periods during any consecutive 12 months shall not exceed the aggregate of (x) 120 days minus (y) the number of days occurring during all Hold Back Periods and Interruption Periods during such consecutive 12 months and (ii) a period of at least 90 days shall elapse between the termination of any Delay Period and the commencement of the immediately succeeding Delay Period. If the Company shall so postpone the filing of a Registration Statement, the Investors holding Registrable Shares to be received registered shall have the right to withdraw the request for registration by giving written notice from the sale Investors within 45 days after receipt of the Registrable Securities requested notice of postponement or, if earlier, the termination of such Delay Period (and, in the event of such withdrawal, such request shall not be counted for purposes of determining the number or timing of requests for registration to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall which the Company be required to effect more than two (2) Demand Registrations Investors are entitled pursuant to this Section 2.016.01). The Company shall not be entitled to initiate a Delay Period unless it shall (A) concurrently prohibit sales by such other security holders under registration statements or prospectus covering securities held by such other security holders and (B) in accordance with the Company's policies from time to time in effect, forbid purchases and sales in the open market by senior executives of the Company.
(be) Promptly after The Company shall not qualify or register any securities that are not Registrable Shares held by an Investor pursuant to this Section 6.01 without the expiration prior written consent of the seven-Business Day period referred to in Section 2.01(a)(ii)Investors.
(f) The Investors may, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At at any time prior to the effective date of any Registration Statement or the registration statement filing of a final prospectus relating to such registrationRegistration, the Requesting Shareholder may revoke such request, without liability, request by providing a written notice to the Company revoking such request. Notwithstanding clause (d) belowrequest and, a requestif the Investors comply with the next succeeding sentence of this Section 6.01(e), so revoked, such request shall not be considered to be deemed a Demand Registration unless (i) such revocation arose out of or to prevent the fault of the Company (in which case the Company Investors from making requests under Section 6.01(g). The Investors shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses reimburse the Company for all Registration Expenses (other than its out-of-pocket expenses incurred in the expenses set forth under clause (v) preparation, filing and processing of the definition of Registration Statement and any preliminary and final prospectus; provided, however, that, if such revocation was based on the term Registration Expenses) of Company's failure to comply in any material respect with its obligations hereunder, such revoked requestreimbursement shall not be required.
(cg) The Company Investors shall also be liable for and shall pay all entitled to request one additional Registration Expenses in connection with any Demand Registrationeach twelve-month period following the Effective Time at the Investors' expense, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration which shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that counted as a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other ShareholdersRegistration. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In additionso requested, the Company shall not be obligated required to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing so comply but shall cooperate in good faith commercially reasonable efforts with the Investors to cause effect at the time of such registration statement to become effectiverequest or upon subsequent request such additional Registration on mutually acceptable terms.
Appears in 1 contract
Demand Registration. (a) If 2.1.1 Subject to paragraphs 2.1.4, 2.1.5 and 2.1.6 of this Article II, at any time and from time to time following completion the date that is 180 days after the date of the Initial Public Offeringthis Agreement, subject to the terms of WLR Funds or any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder Stockholder or group of Shareholders Stockholders of no less than an aggregate of 6,516,000 Shares (the requesting Shareholder(s"Requesting Holders") shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the may make a written request for registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) all or part of the Requesting Shareholder’s Holders' Registrable Securities then outstanding Shares (or any lesser percentage if a "Demand Registration"); provided, however, that the anticipated aggregate offering priceright to request a Demand Registration may be exercised no more than two times by the WLR Funds and three times by the Investors (provided further, net of underwriting discounts however, it being agreed that no single Investor may initiate a Demand Registration more than one time and commissions, would exceed $10,000,000), or (ii) that prior to the date that is the first day after the completion passage of 12 full calendar months following the date of this Agreement, any or all of the Follow-On OfferingInvestors may only exercise their rights for a Demand Registration one time, all or any portion in the aggregate, and the WLR Funds may only exercise their rights for a Demand Registration two times). Each such request will specify the number of shares of Registrable Shares proposed to be offered for sale by the Requesting Shareholder’s Registrable Securities and, in each case, specifying Holders and will also specify the intended method of disposition thereof. A registration will not count as a Demand Registration until it has become effective.
2.1.2 If the Requesting Holders elect, the offering of the Requesting Holders' Registrable Shares pursuant to such Demand Registration will be in the form of an underwritten Public Offering. Subject to the approval of the Company, the Requesting Holders will select the managing underwriter and any additional underwriters in connection with the offering.
2.1.3 If, in connection with any Demand Registration that is to be an underwritten Public Offering, the Company, any other Stockholders or any other holders of Registrable Shares exercising registration rights also desire to sell shares of Common Stock and the managing underwriter of such offering advises the Company, the Requesting Holders and such other Stockholders in writing that the total number of shares requested to be so included in such registration exceeds the number of shares of Common Stock which can be sold in such offering or that the success or pricing of the offering would be materially and adversely affected by the inclusion of all of the shares of Common Stock requested to be so included, then the Company shall will include in such registration (i) first, the Registrable Shares requested to be included by the Requesting Holders, such other Stockholders and such other holders exercising registration rights, allocated pro rata among them in accordance with the number of Registrable Shares held by each of them so that the total number of Registrable Shares to be included in such offering for the account of all such Persons will not exceed the number recommended by such managing underwriter, (ii) second, the shares of Common Stock the Company proposes to offer for sale, which number of shares to be registered will be reduced to the extent necessary to reduce the total number of shares to be included in such offering to the number recommended by such managing underwriter and (iii) third, such number of other shares of Common Stock as promptly as practicable following the date holders thereof desire to offer for sale and the Company and the managing underwriter recommend be included in such offering.
2.1.4 Notwithstanding the foregoing provisions of receipt this Section 2.1, the Requesting Holders may not request a Demand Registration (i) if a registration statement has been filed by the Company with the Commission, unless such registration statement has been withdrawn or has been effective for a period of such request give 90 calendar days, or (ii) if an underwritten offering of Common Stock (whether for the account of the Company or any other security holders) has been consummated within the preceding nine months; provided, however, the limitations in clauses (i) and (ii) of this sentence will not apply if the Requesting Holders were not given the opportunity, in accordance with Section 2.2, to include its Registrable Shares in the registration statement described in clause (i) or the underwritten offering described in clause (ii) (as applicable).
2.1.5 Notwithstanding the foregoing provisions of this Section 2.1, the Requesting Holders will not have the right to initiate or demand a registration hereunder unless they propose to include therein Registrable Shares which it believes in good faith to have a value of at least $25,000,000.
2.1.6 Notwithstanding the foregoing provisions of this Section 2.1, in the event the Company receives notice of such a Demand Registration at least fifteen (10) Registration, the Company may elect once, but only once, by written notice to the Requesting Holders within 20 days after receipt of such Demand Registration notice, to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file proceed with a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities Common Stock for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice 's account in lieu of proceeding with the Demand Registration, all to in which case the extent necessary to permit provisions of Section 2.2 (and not this Section 2.1 ) will apply. If the disposition (Company exercises the right described in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatpreceding sentence, the Company shall Requesting Holders will not be obligated deemed (for purposes of determining the number of future Demand Registrations that may be demanded under the terms of this Agreement) to effect have exercised the right to request a Demand Registration unless the aggregate proceeds expected to be received from the sale at least 80% of the Registrable Securities requested Shares that the Requesting Holders desired to be included include in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations were included pursuant to this Section 2.012.2.
(b) Promptly after the expiration 2.1.7 The Requesting Holders shall be permitted to remove all or any part of the seven-Business Day period referred to in Section 2.01(a)(ii), Registrable Shares held by the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At Requesting Holders from any Demand Registration at any time prior to the effective date of the registration statement relating to covering such registrationRegistrable Shares; provided, however, if, as a result of the Requesting Shareholder may revoke removal of such requestRegistrable Shares, without liabilitysuch registration statement is withdrawn by the Company, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, Demand Registration shall be considered to be nonetheless count as a Demand Registration for purposes of determining the number of future Demand Registrations which can be requested pursuant to Section 2.1 hereof, unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder Holders reimburses the Company for all Registration Expenses (other than incurred by the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any such withdrawn Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Registration Rights Agreement (International Steel Group Inc)
Demand Registration. (a) If at any time following 180 days after the completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)) and the Private Placement Lock-Up Agreement (unless waived in accordance with the terms thereof), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty five percent (3035%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company to be effected pursuant to this Section 2.01 after the completion of the Initial Public Offering (the “Follow-On Offering”), of at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,0005,000,000), or (ii) after the completion of the Follow-On Offering, of all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen within ten (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, provided that if the Demand Registration is given prior to 180 days after the Initial Public Offering, not before 180 days after the Initial Public Offering, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously soon as possible, practicable and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, provided that if the Demand Registration is given prior to 180 days after the Initial Public Offering, the aforesaid one hundred twenty (120) days shall be counted commencing 180 days after the Initial Public Offering less the number of days up to 45 by which the giving of the Demand Registration precedes such 180th day, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Demand Registration. (a) If at At any time following completion 180 days after the date of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act this Agreement and (i) for the period terminating on the first Public Offering anniversary of the Company after the completion date of this Agreement, Holders holding at least 5% of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts Common Stock which is Registrable Stock and commissions, would exceed $10,000,000), or (ii) after the completion thereafter Holders holding at least 2% of the Follow-On Offering, all outstanding Common Stock which is Registrable Stock (or any portion Holders holding less than 2% of the Requesting Shareholder’s outstanding Common Stock which is Registrable Securities andStock who, in each caseusing their reasonable efforts, specifying during the intended method of disposition thereof, then the Company shall as promptly as practicable six month period following the date of receipt notice by them to the Company of such request give notice their desire to register shares of such Demand Registration at least fifteen Stock held by them, have been unable to increase such shares to be registered to 2%, in the aggregate) (10the "Requesting Holders") days after receipt of such Demand Registration may request, in a written notice to the other ShareholdersCompany, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after that the date the Demand Registration is given by the Requesting Shareholder, Company file a registration statement under the Securities ActAct covering the registration of such percentage of shares (at least 5%, 2% or less, as the case may be) of the Common Stock which is Registrable Stock then outstanding in the manner (e.g, underwritten) specified in such notice (a "Demand Notice"); provided, however, that shares of Registrable Stock referred to in clause (iii) of the definition thereof, together with shares issued with respect thereto pursuant to clauses (iv) and (v) of the definition thereof, shall not be counted for purposes of determining if a Holder has satisfied the applicable threshold for making a Demand Notice. A registration effected pursuant to this Section 2 is referred to herein as a "Demand Registration". Following receipt of any Demand Notice under this Section 2, the Company shall (i) give, within 10 business days of receipt of such Demand Notice, each other Holder written notice that it will be filing a registration statement and advise such Holders that they may participate in such registration by promptly so notifying the Company and (ii) use its commercially reasonable efforts to effect, file as expeditiously promptly as possible, and practicable (but in any event within one hundred twenty 60 days after receiving such Demand Notice) a registration statement and use its best efforts to cause to be declared effective as soon as reasonably practicable (120but in any event within 120 days of receiving such Demand Notice) a registration statement providing for the offer and sale of the Registrable Stock that the Requesting Holders and the other Holders have requested be registered in accordance with the manner of disposition specified in the Demand Notice of the Requesting Holders; provided, however, that the participation of a Holder (other than a Requesting Holder) in a Demand Registration pursuant to clause (i) of this sentence shall not be deemed to be a Demand Registration of such participating Holder.
(b) If the Requesting Holders intend to have the Registrable Stock distributed by means of an underwritten offering, the underwriter or underwriters shall be selected by Requesting Holders holding a majority of the shares of Registrable Stock to be sold by such Requesting Holders after consultation with all Requesting Holders, subject to approval by the Company, which approval shall not be unreasonably withheld.
(c) Notwithstanding any provision of this Agreement to the contrary,
(i) the Company shall not be required to effect a Demand Registration if the Demand Notice related thereto is delivered during the period commencing 45 days prior to the estimated date of filing by the Company of a registration statement pertaining to a public offering of equity securities of the Company (a "Company Registration Statement") which are the same as or similar to, or convertible into or exchangeable for, Common Stock of the Company (other than a registration statement on Form S-8 or successor form) and ending on the date of the effectiveness of such Company Registration Statement; provided, however, that in no event shall the Company be required to file a registration statement pertaining to a Demand Registration at any time prior to 90 days after the date the Demand Registration is given by the Requesting Shareholder, of the effectiveness of any Company Registration Statement; (ii) the Company shall not be required to effect more than one Demand Registration in any six-month period; and
(iii) if the Company shall furnish to the Requesting Holders a certificate signed by the chief executive officer of the Company stating that in the good faith opinion of a majority of the board of directors of the Company such registration statementwould require the Company to disclose a material financing, acquisition or other corporate development and that such disclosure at such time is not in each case covering:
the best interests of the Company and its stockholders, then the Company may postpone the filing or effectiveness of a registration statement for such period (the "Delay Period") as the board of directors shall approve; provided, however, that (i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
no single Delay Period may exceed 90 consecutive days; (ii) subject the Delay Periods in any twelve consecutive months may not exceed, in the aggregate, 180 days; and (iii) no Delay Period may commence fewer than 60 days following the end of a prior Delay Period.
(d) Each Original Stockholder will be entitled to two Demand Registrations with respect to the restrictions set forth in Sections 2.01(e), Registrable Stock held by such Original Stockholder; upon transfer or assignment of any or all other of such Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (Stock in accordance with Section 9 hereof, the intended methods thereof Original Stockholder shall notify the Company, in accordance with Section 9, as aforesaid) of to whether or not the Registrable Securities so to be registered, provided thatOriginal Stockholder is assigning Demand Registration rights under this Agreement. As a result, the Company shall not be obligated to effect a more than two Demand Registration unless the aggregate proceeds expected to be received from the sale Registrations in respect of the Registrable Securities requested to be included in such Stock of each Original Stockholder (including for this purpose any Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to rights in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) respect of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses Registrable Stock which have been assigned in connection accordance with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence provisions of Section 2.01(b9 hereof).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder); provided, provided however, that a Demand Registration shall not be deemed to have occurred if, after been effected for a particular Holder for purposes of this Section 2(d) unless (i) the Registration Statement filed in connection with such Demand Registration shall have been declared effective by the Commission; (ii) such Registration Statement shall have remained effective for the period set forth in Section 4; and (iii) the offering of Registrable Stock pursuant to such registration statement becomes effective, such registration statement is interfered with by shall not be subject to any stop order, injunction or other order or requirement of the SEC Commission that is not lifted or released (other than any such stop order, injunction or other governmental agency requirement of the Commission prompted by any act or courtomission of a Requesting Holder).
(e) If the Requesting Shareholder intends 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 Stock registered pursuant to section 2.01a Demand Registration is to be sold in one or more firm commitment underwritten offerings, and the Company shall include sole or managing underwriter, as the case may be, of such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter offering advises the Company and the Requesting Shareholder Holders of such securities that, in its viewopinion, the number of shares total amount of Registrable Securities Stock requested to be included in such registration will exceed the maximum amount (including any the "Maximum Demand Offering Size") of the Company's securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold marketed (1) at a price reasonably related to the then current market value of such securities or (2) without having an adverse effect on such otherwise materially and adversely affecting the entire offering, including the price at which such shares can be sold (the “Maximum Offering Size”), then the Company shall include in such registration, in the following priority listed below, up to the Maximum Demand Offering Size:
: (ix) first, all of the Registrable Securities Stock requested to be included in such registration by all Registering Shareholders (the Requesting Holders pursuant to this Section 2, allocated, if necessary necessary, for the such offering not to exceed the Maximum Demand Offering Size, pro rata among such Shareholders the Requesting Holders on the basis of the relative number of shares of Registrable Securities held by Stock each such Shareholder, or Requesting Holder has requested to be included in such other proportion as shall mutually be agreed to by all such Registering Shareholders)registration; and
and (iiy) second, any securities proposed all of the Registrable Stock requested to be registered included in such registration by Holders other than the Company (including for the benefit of any other Persons not party Requesting Holders pursuant to this Agreement)Section 2, allocated, if necessary, for such offering not to exceed the Maximum Demand Offering Size, pro rata among such non-Requesting Holders on the basis of the relative number of shares of Registrable Stock each such Holder has requested to be included in such registration.
(f) The Company may postpone effecting a registration pursuant agrees not to this Section 2.01 on two occasions during effect any period public or private sale, distribution or purchase of twelve consecutive months for a reasonable time specified in any of its equity securities which are the notice but not exceeding 90 days in the aggregate in any period same as or similar to, or convertible into or exchangeable or exercisable for, Common Stock of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the 30-day period that is thirty (30) days before the Company’s good faith estimate of the date of filing ofprior to, and ending on a date that is ninety (the 90) days after -day period beginning on, the effective date of, of any registration statement filed pursuant to a Company-initiated registration Demand Registration. The foregoing sentence shall not apply to: (other than x) any such equity securities registered pursuant to a registration statement on Form S-8 S-4 (or any successor form) in respect of a business combination, acquisition or similar forms), provided that transaction; (y) any shares of Common Stock issued by the Company is actively employing in good faith commercially reasonable efforts upon the exercise of an option or the conversion of a security outstanding on the filing date of any registration statement; and (z) any shares of Common Stock issued or options to cause such registration statement purchase Common Stock granted pursuant to become effectiveemployee benefit plans of the Company, including, without limitation, the Company's 1997 Stock Incentive Plan and the Company's 1997 Non-Employee Director Stock Plan.
Appears in 1 contract
Sources: Registration Rights Agreement (Galileo International Inc)
Demand Registration. (a) If Subject to the provisions of Section 2(b) hereof, the Holder may at any time following completion after the first anniversary of the Initial Public Offering, subject date of this Agreement 1 make up to two written requests to the terms Company for registration under Form S-3 (or such other appropriate or successor form if Form S-3 is not available) and in accordance with the provisions of Rule 415 promulgated under the Securities Act of all or a portion of his Shares. The Company shall prepare and file with the Securities and Exchange Commission (the "SEC") a registration statement on Form S-3 (or such other appropriate or successor form if Form S-3 is not available) under the Securities Act covering such Shares, shall use its best efforts to cause such registration statement to become effective within ninety (90) days of the Holder's request and shall file such post-effective amendments to such registration statement in order for it to remain effective without lapse until the sale of all the Shares and shall qualify such offering under applicable blue sky or state securities laws.
(b) Notwithstanding delivery of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)written request referred to in Section 2(a), the Company shall receive a request (each such request shall be referred will have the prior right at any time to herein as a “Demand Registration”) from a Shareholder or group conduct public offerings of Shareholders (its common stock for its corporate purposes and may preempt any pending demand registration, in which case Section 3 will apply to the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”)offering. Under these circumstances, holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company will not be obligated to effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested demand registration under this Section 2.012 and such previously requested registration will not count as a demand registration under Section 2(a). In addition, and
(ii) subject if, prior to the restrictions set forth in Sections 2.01(etime a written request is delivered under Section 2(a), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register has given written notice pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid3(a) of the Registrable Securities so its intention to be registered, provided thatfile a registration statement, the Company shall not be obligated to effect a Demand Registration unless cause the aggregate proceeds expected requested demand registration to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly become effective until 120 days after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the such 2 registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to or until the Company revoking such request. Notwithstanding clause (d) belowceases to diligently pursue the preparation, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) filing and effectiveness of such revoked requestregistration statement.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the file a registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that with respect to the Company is actively employing in good faith commercially reasonable Option Shares promptly after the date hereof and shall use its best efforts to cause such registration statement to become effectiveremain effective until the related stock options have been exercised or expired.
(d) The Company shall pay the expenses described in Section 6 for the registration pursuant to this Section 2.
Appears in 1 contract
Sources: Registration Rights Agreement (Monterey Homes Corp)
Demand Registration. (a) If at any time following completion of after 18 months after the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), Closing the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, outstanding that the Company effect the file a Form S-1 registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), statement with respect to at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any a lesser percentage percent if the anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed $10,000,00010.0 million), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (i) within ten (10) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders; and thereupon shall (iii) as soon as practicable, and in any event within forty five sixty (4560) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a Form S-1 registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (including 20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c) and Section 2.3. If at any securities time after 18 months after the Closing and the Company is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least twenty percent (20%) of the Registrable Securities then outstanding that the Company proposes file a Form S-3 registration statement with respect to be included that are not outstanding Registrable Securities) exceeds the largest number Securities of shares that can be sold without such Holders having an adverse effect on such offeringanticipated aggregate offering price, including the price net of Selling Expenses, of at which such shares can be sold (the “Maximum Offering Size”)least $5.0 million, then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) firstwithin ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within thirty (30) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within ten (including for 10) days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party Section 2.1(c) and Section 2.3. Notwithstanding the foregoing obligations, if the Company furnishes to this Agreement).
(f) The Company may postpone effecting Holders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its shareholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, reorganization or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve 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 seventy-five (75) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than two times 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 shareholder during such seventy-five (75) day period other than an Excluded Registration. In addition, the The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 2.1(a) (i) 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided 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 Section 2.1(a); or (iii) 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 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(b) (i) 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 is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately preceding the date of such request. Notwithstanding the foregoing, no more than four (4) registrations shall be permitted under this Agreement. A registration shall not be counted as “effected” for purposes of this Section 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, 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 Section 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1(d).
Appears in 1 contract
Sources: Merger Agreement (Green Plains Renewable Energy, Inc.)
Demand Registration. (a) If Upon the written request from time to time (a "Request") of any Blackstone Entity or any Affiliate of a Blackstone Entity that holds Common Stock that the Company effect the registration under the Securities Act of all or part of the shares of Common Stock owned by such Blackstone Entity and Affiliates, the Company will as expeditiously as practicable use its reasonable best efforts to effect the registration under the Securities Act of such shares and cause such registration statement to remain effective for a period of not less than 180 days; provided, however, that the Company shall not be required to effect more than five registrations pursuant to this Section 2.8(a). The Blackstone Entities shall have the right to select the managing underwriter or underwriters to administer the offerings covered by its Requests.
(b) For so long as ▇▇▇▇▇ and his Affiliates beneficially own not less than 40% of the aggregate number of shares of Common Stock beneficially owned by ▇▇▇▇▇ on the date hereof (taking into consideration any stock dividends on, or subdivisions, reclassifications, combinations or other similar adjustments to, the Common Stock), upon the written request of ▇▇▇▇▇, at any time after 180 days following completion of the Initial first Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of all or part of the Company after the completion shares of the Initial Public Offering (the “Follow-On Offering”)Common Stock owned by ▇▇▇▇▇ and his Affiliates, at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall will as promptly expeditiously as practicable following effect the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities ActAct of such shares and cause such registration statement to remain effective for a period of not less than 180 days; provided, and (ii) use its commercially reasonable efforts to effecthowever, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations one registration pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii2.8(b); provided, further, if the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders is requested to effect such a demand by ▇▇▇▇▇ and the number of shares of Registrable Securities requested to Blackstone Entities reasonably determine in good faith it would be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice detrimental to the Company revoking and its securityholders for such request. Notwithstanding clause (d) belowregistration statement to be filed on or before the date such filing would otherwise be required hereunder, a request, so revoked, the filing shall be considered to be deferred for a Demand Registration unless (i) such revocation arose out period of not more than 180 days after receipt of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with request for such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestregistration from ▇▇▇▇▇.
(c) The For so long as Jupiter and ▇▇▇▇▇▇ and their Affiliates together beneficially own not less than 40% of the aggregate number of shares of Common Stock beneficially owned by Jupiter and ▇▇▇▇▇▇ on the date hereof (taking into consideration any stock dividends on, or subdivisions, reclassifications, combinations or other similar adjustments to, the Common Stock), upon the written request of a majority in interest of Jupiter and ▇▇▇▇▇▇, at any time after 180 days following the first Public Offering, that the Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless effect the registration statement relating thereto (i) has become effective under the Securities Act of all or part of the shares of Common Stock owned by Jupiter and (ii) has remained ▇▇▇▇▇▇ and their Affiliates, the Company will as expeditiously as practicable effect the registration under the Securities Act of such shares and cause such registration statement to remain effective for a period of at least not less than 180 days (or such shorter period in which all Registrable Securities of days; provided, however, that the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration Company shall not be deemed required to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a more than one registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed2.8(c); provided, further, if the Company furnishes is requested to effect such a demand by Jupiter and ▇▇▇▇▇▇ and the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing Blackstone Entities reasonably determine in good faith commercially reasonable efforts it would be detrimental to cause the Company and its securityholders for such registration statement to become effectivebe filed on or before the date such filing would otherwise be required hereunder, the filing shall be deferred for a period of not more than 180 days after receipt of the request for such registration from Jupiter and ▇▇▇▇▇▇.
Appears in 1 contract
Sources: Stockholders' Agreement (American Axle & Manufacturing Holdings Inc)
Demand Registration. (a) If at any time following completion upon the earlier of (i) August 30, 2010 or (ii) one hundred eighty (180) days after the effective date of the Initial Public Offering, subject to registration statement for the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IPO, the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) Holders of the Registrable Securities then outstanding, Requisite Threshold (as defined below) that the Company effect the a registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), with respect to at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any a lesser percentage percent if the anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed $10,000,00040 million), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (i) within ten (10) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders; and thereupon shall (iii) as soon as practicable, and in any event within forty five sixty (4560) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), Act covering all Registrable Securities for which that the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those Initiating Holders requested to be registered by the Requesting Shareholder that and any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all additional Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within twenty (including for 20) days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this AgreementSections 2.1(b) and 2.1(c).
(fb) The Notwithstanding the foregoing obligations, if the Company may postpone effecting furnishes to Holders requesting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be 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 otherwise would be required to remain effective, because such action would (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve 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, for a period of not more than ninety (90) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period. In additionFor the purposes of determining whether the Company has invoked this right in any twelve (12) month period, the such calculation shall also include any delay of a registration statement pursuant to Section 2.3(b).
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 2.01 2.1 (i) during the period that is thirty sixty (3060) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety one hundred eighty (90180) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms)registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) if it delivers notice to the holders of the Registrable Securities within thirty (30) days of any registration request of its intent to file a registration statement for such initial public offering within ninety (90) days; (iii) after the Company has effected two registrations pursuant to this Section 2.1; or (iv) 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 2.3. A registration shall not be counted as “effected” for purposes of this Section 2.1 until such time as the applicable registration statement has been declared effective by the SEC, 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 Section 2.7, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.1.
Appears in 1 contract
Sources: Stockholder Rights Agreement (Everyday Health, Inc.)
Demand Registration. If (ai) If at any time following completion within three years from the ------------------- date of this Agreement the Initial Public Offering, subject provisions of Article 3 shall have terminated pursuant to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company Section 3.2 hereof and if Premiere shall receive a request (each from an Initiating Holder, within sixty days of such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000)termination, or (ii) at any time within the third year commencing after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by this Agreement Premiere shall receive from an Initiating Holder, a written request that Premiere effect a registration with respect to all or a part of the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other ShareholdersRegistrable Securities, if anyPremiere will, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable best efforts to effect, effect such registration as expeditiously may be so requested and as possible, would permit or facilitate the sale and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness distribution of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all or such portion of such Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth as are specified in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registeredrequest, provided that, the Company that Premiere shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to -------- effect, or to take any action to effect, any such registration:
(a) Unless such registration proposes to dispose of Registrable Securities having an aggregate expected gross offering price of at least ten million dollars ($10,000,000) or the entire remaining number of Registrable Securities;
(b) Unless Premiere is eligible to effect the registration under Form S-3 (or a successor form) as promulgated by the SEC or WorldCom agrees to pay all Registration Expenses (as defined below) in excess of $40,000;
(c) Which could result in the registration statement for such a registration being declared effective prior to the 90th day subsequent to the effective date of any registration effective pursuant to Section 5.2 or 5.3 of the Stock Purchase Agreement between Premiere and NationsBanc Capital Corporation dated January 18, 1994 (it being represented by Premiere that as of the date hereof no such registration is effective or pending);
(d) If, upon receipt of a registration request pursuant to this Section 4.1, Premiere is advised by a recognized national independent investment banking firm selected by Premiere that, in such firm's opinion, a registration at the time and on the terms requested would adversely affect any public offering of securities of Premiere by Premiere (other than in connection with benefit and similar plans) or by or on behalf of any shareholder of Premiere exercising a demand registration right (collectively, a "Premiere Offering") with respect to which Premiere has commenced preparations for a registration prior to the receipt of a registration request pursuant to this Section 4.1, Premiere shall not be required to effect a registration pursuant to this Section 2.01 during 4.1 until the period earlier of (x) 30 days after the completion of such Premiere Offering, (y) promptly after any abandonment of such Premiere Offering or (z) 60 days after the date of receipt of a registration request pursuant to this Section 4.1 (it being represented by Premiere that is thirty (30) days before the Company’s good faith estimate as of the date hereof Premiere has not commenced preparation for, and has no current plans to commence preparation for, such a registration);
(e) In any particular jurisdiction in which Premiere would be required to execute a general consent to service of filing process in effecting such registration, qualification or compliance, unless Premiere is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder; or
(f) After Premiere has effected a registration pursuant to this Section 4.1 and such registration has been declared or ordered effective. The registration statement filed pursuant to the request of the Initiating Holders may, subject to the further provisions set forth below, include other Securities of Premiere including without limitation Securities which are held by Persons who, by virtue of agreements with Premiere, are entitled to include their Securities in any such registration ("Other Stockholders"). As of the date hereof, the Other Stockholders are Sirrom Capital Corporation ("Sirrom"), NationsBanc Capital Corporation and CMG@Ventures, L.P. ("CMG"). If the Initiating Holders propose to effect an underwritten distribution pursuant to a registration effected under this Section 4.1, they shall do so through the services of such nationally recognized investment banking firm as they may select, subject to the approval of Premiere, which will not be unreasonably withheld, conditioned or delayed. If Other Stockholders request inclusion in any such registration that is underwritten, the Holders shall offer to include the securities of such Other Stockholders in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Article 4. The Holders whose shares are to be included in such registration and Premiere shall (together with all Other Stockholders proposing to distribute their securities through such underwriting) enter into underwriting and related agreements in customary form with the representative of the underwriter or underwriters so selected for such underwriting. Such underwriting agreement will contain such representations and warranties by Premiere and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution to the effect and to the extent provided in Section 4.5 hereof and the provision of opinions of counsel and accountants' letters to the effect and to the extent provided in Section 4.4 hereof, and the representations and warranties by, and the other agreements on the part of, Premiere to and ending for the benefit of such underwriters shall also be made to and for the benefit of the Holders. Premiere shall cooperate fully with the Holders and the underwriters in connection with any underwritten offering. Notwithstanding any other provision of this Article 4, if the representative advises the Holders that marketing factors require a limitation on a date that is ninety (90) days after the effective date ofnumber of shares to be underwritten, a Company-initiated registration the securities of Premiere held by Other Stockholders (other than shares held by Sirrom and CMG which Sirrom and CMG has requested be included in the offering pursuant to existing registration rights granted to Sirrom and CMG) shall be excluded from such registration to the extent so required by such limitation. If, after the exclusion of such shares, further reductions are still required, the number of shares included in the registration by each Holder shall be reduced on a registration pro rata basis (based on Form S-8 the number of shares held by such Holder), by such minimum number of shares as is necessary to comply with such request. No Registrable Securities or any successor or similar forms), provided that other securities excluded from the Company is actively employing underwriting by reason of the underwriter's marketing limitation shall be included in good faith commercially reasonable efforts to cause such registration. If any Other Stockholder who has requested inclusion in such registration statement as provided above disapproves of the terms of the underwriting, such person may elect to become effectivewithdraw therefrom by written notice to Premiere, 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 or other securities to be underwritten, Premiere and officers and directors of Premiere may include its or their securities for its or their own account in such registration if the representative so agrees and if the number of Registrable Securities and other securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
Appears in 1 contract
Demand Registration. (a) If at At any time following completion the date hereof (but subject to Section 5.10 of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)Purchase Agreement), the Company shall receive a Holder may request (each such request in writing that all or part of the Registrable Securities held by them shall be referred to herein as registered under the Securities Act (a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, . The parties acknowledge and agree that the Holder may initiate the process for a Demand Registration prior to completion of any applicable lock-up periods provided that Holder does not effectuate the Transfer of shares thereunder until completion of all applicable lock-up periods. Thereupon, the Company shall effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion all such or such part of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in ; provided that (i) the Company shall not be required to effect any event registration under this Section 2.3 (x) within forty five a period of ninety (4590) days after following the effective date of a previous registration for which the Demand Registration is given by Holder had an opportunity to participate and (y) with respect to Registrable Securities with a total offering price not reasonably expected to exceed, in the Requesting Shareholderaggregate, file a registration statement under the Securities Act$100 million, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the this provision shall not apply if a shelf registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder on Form F-3 has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register been filed pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, 2.4 and is effective and available for use; provided that, further that the Company shall not be obligated to effect a Demand declare the applicable Registration unless Statement effective prior to the aggregate proceeds expected to be received from the sale of date on which the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000registered thereunder are freely transferable under Section 5.10 of the Purchase Agreement. In no event The Company shall the Company not be required to effect more than two one (21) Demand Registrations registration under this Section 2.3. If the Company shall furnish to the Holder a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the board of directors (the “Board”) it would be seriously detrimental to the Company or its shareholders for a registration under this Section 2.3 to be effected at such time, the Company shall have the right to defer such registration for a period of not more than sixty (60) days after receipt of the request of the Holder under this Section 2.3, provided that the Company shall not utilize this right more than twice in any twelve (12) month period. The Holder may elect to withdraw from any offering pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, 2.3 by providing a giving written notice to the Company revoking and the underwriter(s) of its request to withdraw prior to the effectiveness of the Registration Statement filed with the SEC with respect to such requestDemand Registration. Notwithstanding clause (d) below, If the Holder withdraws from a request, so revoked, shall be considered proposed offering relating to be a Demand Registration unless (i) such revocation arose out of then either the fault of Holder shall reimburse the Company for the costs associated with the withdrawn Demand Registration (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that count as a Demand Registration provided for in this Section 2.3) or such withdrawn registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company count as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and provided for in this Section 2.3. Notwithstanding any other provision of this Section 2.3, if the managing underwriter advises the Company and Holder in writing that marketing factors require a limitation on the Requesting Shareholder that, in its view, dollar amount or the number of shares to be underwritten, then the amount of Registrable Securities proposed to be registered shall be reduced appropriately; provided that in any event all Registrable Securities held by the Holder and which are requested to be included must be included in such registration (including prior to any securities that other shares of the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offeringCompany, including shares held by persons other than the price at which such shares can be sold (the “Maximum Offering Size”), the Holder. The Company shall include not register securities for sale for its own account in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities any registration requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes 2.3 unless permitted to the Requesting Shareholder a certificate signed do so by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate written consent 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveHolder.
Appears in 1 contract
Demand Registration. (a) If at any time following completion Holders of a Majority of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters Registrable Shares (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting ShareholderHolders”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, request that the Company effect the a registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”)Registrable Shares, at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable best efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of effect the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidfollowing provisions:
a) of the Registrable Securities so to be registered, provided that, the The Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected file and cause to be received from the sale of become effective (i) more than two registration statements in connection with firm commitment underwritten public offerings pursuant to which the Registrable Securities Shares requested to be included in such Demand Registration equals a registration statement have been sold as contemplated by that registration statement, (ii) any registration statement other than (A) a registration statement referred to in the preceding clause (i) or exceeds $10,000,000. In no event shall (B) up to one shelf registration statement on Form S-3 (or a successor form) in any 12-month period that is not in connection with a firm commitment underwritten public offering, or (iii) any registration statement during any period in which any other registration statement (other than on Form S-4 or S-8 under the Securities Act, or any successor forms) pursuant to which Primary Shares are to be or were sold in a firm commitment underwritten public offering has been filed and not withdrawn, or has been declared effective within the prior 90 days.
b) The Company be required may, on one occasion only, delay the filing or effectiveness of any registration statement for a period of up to effect more than two (2) Demand Registrations 90 days after the date of a request for registration pursuant to this Section 2.01.
section 1, if, at the time of the request, (bi) Promptly the Company is engaged, or plans to engage within 90 days after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing in a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out firm commitment underwritten public offering of the fault of the Company (Primary Shares in which case the Company shall be obligated holders of Registrable Shares may include Registrable Shares pursuant to pay all Registration Expenses in connection with such revoked request) section 2, or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requesta Material Transaction exists.
(c) The Company shall be liable for and shall pay all Registration Expenses may include in connection with any Demand Registration, regardless of whether such Registration is effected, unless registration pursuant to this section 1 any Registrable Shares not held by the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless Holders, any Primary Shares, or any Other Shares; provided, however, that, if the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for relates to a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering firm commitment public offering and the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares, and Other Shares proposed to be included in the Requesting Shareholder that, registration would interfere with the successful marketing (including pricing) of the Registrable Shares proposed to be included in its viewthe registration, the number of shares Registrable Shares, Primary Shares, and Other Shares proposed to be included in the registration shall be included in the following order: first, the Registrable Shares of the Requesting Holders; second, other Registrable Securities Shares (or, if necessary, pro rata among the Holders of the other Registrable Shares, based upon the number of other Registrable Shares requested to be included by each such Holder); third, the Primary Shares; and fourth, the Other Shares (or, if necessary, pro rata among the holders of the Other Shares, based upon the number of Other Shares requested to be included by each such holder).
d) The Requesting Holders shall have the right to designate the managing underwriter of the offering, subject to the consent of the Company, which consent shall not be unreasonably withheld.
e) At any time before the registration statement covering Registrable Shares becomes effective, the Requesting Holders may request that the Company withdraw or not file the registration statement. In that event, if the request of withdrawal shall not have been caused by, or made in response to, the material adverse effect of an event on the business, properties, condition, financial or otherwise, or operations of the Company, the Holders shall be deemed to have used one of the demand registration rights under this section 1, unless the Holders agree to reimburse the Company for the Company’s reasonable, out-of-pocket expenses in connection with the registration through the date of the request. A registration referred to in section 1(a)(i) shall not count as a registration statement referred to in section 1(a)(i), unless it becomes effective and the Requesting Holders are able to sell at least 80% of their Registrable Shares requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectivestatement.
Appears in 1 contract
Sources: Registration Rights Agreement (Comcam International Inc)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive receives a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, outstanding that the Company effect the file a registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s statement with respect to outstanding Registrable Securities then outstanding (or any lesser percentage if the of such Holders having an anticipated aggregate offering price, net of underwriting discounts and commissionsSelling Expenses, would exceed of at least $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof5.0 million, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (i) within ten (10) days after receipt of the date such request is given, give notice thereof (the “Demand Registration Notice”) to all Holders other than the other Shareholders, if any, Initiating Holders; and thereupon shall (iii) as soon as practicable, and in any event within forty forty-five (45) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a registration statement under the Securities Acton Form S-3 or, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration if Form S-3 is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject unavailable to the restrictions set forth in Sections 2.01(e)Company, all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01on Form S-1, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, covering all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany other Holders, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held as specified by notice given by each such Shareholder, or in such other proportion as shall mutually be agreed Holder to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company within twenty (including for 20) days of the benefit date the Demand Notice is given, and in each case, subject to the limitations of any other Persons not party to this Agreement)Subsection 2.1(b) and Subsection 2.3.
(fb) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in Notwithstanding the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed)foregoing obligations, if the Company furnishes to the Requesting Shareholder Holders requesting a registration pursuant to this Subsection 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be 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 otherwise would be required to remain effective, because such action would (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or Company; (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve for preserving as confidential. In addition; 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 for a period of not more than one hundred twenty (120) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than once in any twelve (12) month period.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 Subsection 2.1(a) (i) 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 (other than a registration on Form S-8 or any successor or similar forms)registration, provided provided, that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(a) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(c) until such time as the applicable registration statement has been declared effective by the SEC, 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 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Subsection 2.1(c).
(d) If the Initiating Holders so request, the Company shall:
(i) file an “evergreen” shelf registration statement on Form S-3 (or, in the event Form S-3 is unavailable to the Company, Form S-1) pursuant to Rule 415 under the Securities Act (or any successor provisions), providing for an offering to be made on a continuous basis of the Registrable Securities (the “Shelf Registration”), with the Company to use reasonable best efforts to make such filing on or before the date 45 days after the date such request is given;
(ii) use reasonable best efforts to cause the Shelf Registration to become effective as soon as practicable after such filing;
(iii) use commercially reasonable efforts to maintain in effect, supplement and amend, if necessary, the Shelf Registration, as required by the instructions applicable to such registration form or by the Securities Act;
(iv) furnish, upon request, to the holders of the Registrable Securities to which the Shelf Registration relates copies of any supplement or amendment to such Shelf Registration prior to such supplement or amendment being used and/or filed with the SEC; and
(v) pay all Registration Expenses in connection with the Shelf Registration, whether or not it becomes effective, and whether all, some or none of the Registrable Securities to which it relates are sold pursuant to it.
(e) If at any time before the third anniversary of the effectiveness of the Shelf Registration, the Shelf Registration ceases to be effective, the Company shall use commercially reasonable efforts to file and use its commercially reasonable efforts to cause to become effective a new “evergreen” shelf registration statement providing for an offering to be made on a continuous basis of the Registrable Securities by the Holders. Such shelf registration statement shall be filed on Form S-3 or, if Form S-3 is unavailable to the Company, on Form S-1.
(f) If, after the Shelf Registration has become effective, it is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or authority, the Company shall use its commercially reasonable efforts to prevent the issuance of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment.
Appears in 1 contract
Demand Registration. (a) If at any time following completion after 180 days from the date of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), this Agreement the Company shall receive a request be requested in writing by LCO (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) and LCO then holds more than 50% of the total number of issued and outstanding Registrable Securities then outstanding, that the Company at such time) to effect the registration under the Securities Act (i) for the first Public Offering of shares of the Company after Company's Common Stock then owned by Holders (which request shall specify the completion aggregate number of shares intended to be offered and sold by Holders, shall describe the nature or method of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts proposed offer and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then sale thereof and shall contain an undertaking by Holders to cooperate fully with the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration in order to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested permit the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice comply with all applicable requirements of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders Act and the number rules and regulations thereunder and to obtain acceleration of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registrationcontemplated thereby), the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) effect the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) registration of such revoked request.securities on an appropriate form under the Act, provided that:
(c) The Company 2.1 LCO's rights under this Section 2 shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless exercisable only if the Requesting Shareholder elects shares as to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to which LCO requests registration have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period an aggregate value of at least 180 $3,000,000 based on the average of the closing bid price for the Company's common stock as listed on the American Stock Exchange or any other exchange on which the Company's common stock then may be traded for the thirty (30) trading-day period immediately preceding the date of such request for registration;
2.2 the Company's Board of Directors, with the advice of such investment bankers or securities professionals as the Board shall deem necessary, shall have determined in good faith that the cost of complying with the request for registration under this Section 2 would not have a materially adverse effect upon the Company, its operations or the market for the Company's common stock, provided, however, that if the Company's Board of Directors determines in good faith that the cost of complying with the request for registration would have a material adverse effect upon the Company, its operations or the market for the Company's common stock, the Company may decline Holders' request to register Holders' Registrable Securities under the Act, provided further, however, that in such event the Company may not thereafter again decline LCO's request for registration based upon this Section 2(ii) so long as such subsequent request is received by the Company more than 120 days after LCO's request for registration which was declined based upon this Section 2(ii);
2.3 LCO shall be entitled to only one demand registration pursuant to this Agreement, provided, however that any request for registration pursuant to this Section 2 which does not result in the declaration of effectiveness of a registration statement (which effectiveness is maintained continuously for at least 120 days or such shorter period ending when all shares to which LCO has requested registration in which all Registrable Securities of the Registering Shareholders included in such registration accordance herewith have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after in accordance with such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of registration) covering the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, offer and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number sale of shares of Registrable Securities owned by Holders and requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offeringstatement, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis whether as a result of the relative number withdrawal of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered the registration statement by the Company (including or through other action or inaction of the Company or for any other reason except for the benefit voluntary decision of any other Persons Holders to terminate the registration after the request for such registration has been delivered to the Company, shall not party to this Agreement).
(f) The Company may postpone effecting a be counted in determining the number of times registration rights have been exercised pursuant to this Section 2.01 on two occasions during 2;
2.4 the Company shall be entitled to postpone the filing of any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not registration statement otherwise required to be extended or renewed)prepared and filed by it pursuant to this Section 2, if at the Company furnishes to the Requesting Shareholder time it receives a certificate signed by request for such registration, the Company’s chief executive officer stating 's underwriter determines that (i) effecting the such registration and offering would materially and adversely interfere with a significant any existing or then presently contemplated financing, acquisition, corporate reorganization, reorganization or other similar material transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that Company, and the Company has a bona fide business purpose to preserve as confidential. In additionpromptly gives LCO written notice of such determination, the Company provided, however, that such postponement shall not be obligated extend beyond the time that such material interference continues to effect, or exist; and
2.5 LCO shall have no right to take demand registration with respect to any action to effect, any registration pursuant to Section 2.01 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 shares within ninety (90) calendar days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or of any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectivepreviously filed by the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Ion Laser Technology Inc)
Demand Registration. (ai) If If, at any time following completion the earlier of (I) the Option Period Expiry Date, (II) Option Closing Date, (III) the termination of the Initial Public OfferingExclusive Lead Sharing and Distribution Agreement, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))IV) December 31, 2017, the Company shall receive a written request (each such from the Investor that the Company effect an offering under the Securities Act of all or a portion of the Investor’s Company ADS’s, which written request shall be referred specify (a) the number of Company ADSs that the Investor intends to herein as a “Demand Registration”) from a Shareholder or group dispose of Shareholders pursuant to such offering (the requesting Shareholder(s) shall be referred to herein as the “Requesting ShareholderRegistrable Securities”), holding at least thirty percent (30%b) the intended method or methods of sale or disposition of the Registrable Securities then outstanding, that and (c) the Company effect the registration under the Securities Act expected price range (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after acceptable to the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Investor to be received for such Registrable Securities and, in each case, specifying the intended method of disposition thereof(“Demand Request”), then the Company shall as promptly as practicable following shall:
(1) cause to be filed with the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other ShareholdersSEC, if any, and thereupon shall (i) as soon as practicable, and but in any event within forty five (45) 45 days after of the date of delivery to the Company of the Demand Registration is given by the Requesting ShareholderRequest, file a registration statement on Form F-1 or, if eligible, a shelf registration statement pursuant to Rule 415 under the Exchange Act on Form F-3 (each, a “Registration Statement”), covering such Registrable Securities Act, and that the Company has been so requested to register by the Investor; and
(ii2) use its commercially reasonable best efforts to effecthave such Registration Statement declared effective by the SEC as soon as practicable thereafter, as expeditiously as possible, and but in any no event within one hundred twenty (120) later than 120 days after following the date of initial filing thereof with the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, andSEC.
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those A registration requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after 5.8 shall not be deemed to have been effected (a) unless a Registration Statement with respect thereto has become effective and remained effective until such Shareholders receive the Company’s notice time as all of the Demand Registration, all to the extent necessary to permit the disposition (Registrable Securities registered thereunder shall have been disposed of in accordance with the intended methods thereof as aforesaid) of disposition by the Registrable Securities so to be registeredInvestor; provided, provided thathowever, the Company that such period shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
exceed 120 days, (b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes it has become effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtGovernmental Entity for any reason and has not become effective within 30 days thereafter.
(eiii) If the Requesting Shareholder intends Investor’s right under this Section 5.8(a) may be exercised not more than twice.
(iv) The Company will not be required to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise effect any registration in response to a Demand Request if the Company as part gives the Investor written notice within seven (7) days from the receipt of their request pursuant to section 2.01the Demand Request, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number is engaged in preparation of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months statement for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months firmly underwritten registered public offering (for which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not statement must be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the period that is filed within thirty (30) days before the of such Company’s good faith estimate of notice to the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar formsInvestor), ; provided that the Company is actively employing in good faith commercially its reasonable best efforts to cause such registration statement firmly underwritten registered public offering to become effective, provided further that if such firmly underwritten registered public offering is not effected within sixty (60) days of such Company’s notice to the Investor, then the Company shall effect the registration in response to the Demand Request as soon as practicable, but in any event within 30 days of expiration of the foregoing 60 days.
(v) The information provided by the Investor pursuant to the sub items (b) and (c) of Section 5.8(a)(i) shall not bind the Investor in any way and shall not obligate the Investor to dispose of the Registrable Securities.
Appears in 1 contract
Demand Registration. (a) If One or more owners of Registrable Shares (a "Holder" or "Holders") of not less than 20% of the Registrable Shares ("Initiating Holders") then outstanding may request at any time following completion of after the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived Effective Time registration by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration Albion under the Securities Act (i) for the first Public Offering of the Company after the completion resale of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company a part of such request give notice of such Holder's Registrable Shares (a "Demand Registration at least fifteen Registration").
(10b) days after receipt of such Demand Registration Notwithstanding subsection (a) above or anything else herein to the other Shareholderscontrary, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company Albion shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations one registration pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred Article VII; provided, however, that any registration requested pursuant to in Section 2.01(a)(ii), the Company this Article VII will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto been effected (i) unless it has become effective and remained effective for the lesser of (1) the period necessary to complete the sale or disposition of the Registrable Shares covered by such Registration Statement, or (2) 180 days after the effective date of such Registration Statement, except with respect to any Registration Statement filed pursuant to Rule 415 under the Securities Act and Act, in which case Albion shall use its best efforts to keep such Registration Statement effective until such time as all of the Registrable Shares cease to be Registrable Shares; (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes it has become effective, such registration statement is interfered with by any stop order, injunction injunction, or other order or requirement of the SEC or other governmental agency or courtcourt for any reason not attributable to the selling Holders and has not thereafter become effective, or (iii) 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 solely by reason of a failure on the part of the selling Holders; provided, further, that any such registration that does not become effective after Albion has filed a Registration Statement in accordance with the provisions of this Section 7.02 solely by reason of the refusal to proceed of the Holder or Holders who have requested the Demand Registration pursuant to subsection (a) above, including failure to comply with the provisions of this Agreement (other than any refusal to proceed based upon the advice of counsel to such Holder or Holders that the Registration Statement, or the prospectus contained therein, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, or that such Registration Statement or such prospectus, or the distribution contemplated thereby, otherwise violates or would, if such distribution using such prospectus took place, violate any applicable state or federal securities law) shall be deemed to have been effected by Albion at the request of such Holder or Holders.
(ec) Notwithstanding subsection (a) above or anything else herein to the contrary, it is hereby agreed that a Demand Registration must cover no less than 50% of the Registrable Shares then outstanding. In the event a Holder requests that Albion effect a Demand Registration pursuant to this Section 7.02, Albion will (i) promptly give notice of the proposed registration to all other Holders, and (ii) use its reasonable best efforts to effect the registration of the Registrable Shares specified in the request, together with the Registrable Shares of any other Holder joining in such request as are specified in a written request received by Albion within 20 days after receipt of the notice referred to in clause (i) above.
(d) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter in any registration effected under this Section 7.02 advises the Company and the Requesting Shareholder Albion that, in its viewreasonable opinion, the number of shares of Registrable Securities securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on in such offeringoffering within a price range acceptable to the Holders of 66-2/3% of the Registrable Shares requested to be included in such registration, including Albion, except as provided in the price at which such shares can be sold (the “Maximum Offering Size”)following sentence, the Company shall will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) firstextent of the number and type that Albion is so advised can be sold in such offering, all Registrable Securities Shares requested to be included in such registration, pro rata among the Holders requesting such registration on the basis of the estimated gross proceeds from the sale thereof. If the total number of Registrable Shares requested to be included in such registration by all Registering Shareholders (allocatedcannot be included as provided in the preceding sentence, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number holders of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a Shares requesting registration thereof pursuant to this Section 2.01 on two occasions during any period 7.02, representing not less than 33-1/3% of twelve consecutive months the Registrable Shares with respect to which registration has been requested and constituting not less than 66-2/3% of the Initiating Holders, shall have the right to withdraw the request for a reasonable time specified registration by giving written notice to Albion within 20 days after receipt of such notice by Albion and, in the notice but not exceeding 90 days in the aggregate in any period event of twelve consecutive months (which period may not be extended or renewed)such withdrawal, if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company such request shall not be obligated counted for purposes of the requests for registration to effect, or to take any action to effect, any registration which holders of Registrable Shares are entitled pursuant to this Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective7.02.
Appears in 1 contract
Demand Registration. (a) If at At any time following completion of the Initial Public Offering, subject subsequent to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))End Date until November 30, 2013, the Company Holders of Special Shares shall receive have the right to "demand" on one occasion only, the filing of a request (each registration statement to register that number of shares in the Common Stock issued or issuable to the Holders of Special Shares which have not yet been sold. In order to exercise such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group "demand right" the Holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), Special Shares holding at least thirty fifty percent (3050%) of the Registrable Securities then outstandingissued and outstanding Special Shares (counted as a single class) at the time, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request must give notice of such Demand Registration at least fifteen IMSC not less than ten (10) days after receipt advance written notice that IMSC effect a registration. Whenever IMSC shall be requested, pursuant to this paragraph 2.b., to effect the registration of any shares of Cann▇▇ ▇▇▇ck under the 1933 Act, IMSC mall properly give written notice of such Demand Registration proposed registration to all Holders of Special Shares. Upon such demand and subject to the other Shareholderslimitation of paragraph 2.c. herein, if any, and thereupon IMSC shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after use its best efforts to cause a registration statement covering the date following securities to become effective.
1. the Demand Registration is given by the Requesting Shareholder, the effectiveness shares of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for Common Stock which the Requesting Shareholder 11450 has been requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01paragraph 2.b., by request received and
2. such other sham of Common tweaks the Company Stock shall be included in such registration; provided, however that if the securities which at are subject of such registration are offered through an underwriter or group of underwriters and such underwriter(s) requests that to additional shares of Common Stock desired by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatregistered be excluded from such registration and such request is reasonable in light of prevailing market conditions, the Company Holder of Special Shares shall not be obligated to effect a Demand Registration unless include such additional shares Common Stock of the aggregate proceeds expected to be received from Company. Further, through its best efforts, the sale Company shall maintain the registration statement contemplated in this paragraph 2.b. effective until the earlier of (i) the date as of which the Holders of Special Shares may sell all of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations without restriction pursuant to this Section 2.01.
Rule 144(k) promulgated under the 1933 Act (bor successor thereto) Promptly after or (i) the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to third anniversary from the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (contemplated in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestthis paragraph 2.b.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Registration Rights Agreement (International Menu Solutions Corp)
Demand Registration. At any time during the period beginning one (1) year following the closing of the IPO, (a) If at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one Initiating Holders may request in writing that all or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) part of the Registrable Securities then outstandingShares shall be registered for trading on any securities exchange on which the Company's shares are otherwise traded, that the Company effect the registration under the Securities Act and (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (iib) after the completion Company has completed at least one (1) registration at the request of the Follow-On OfferingHolders, the Founders holding a majority of the Founders' Shares may request in writing that all or any portion part of the Requesting Shareholder’s Registrable Securities andFounders Shares shall be registered for trading on any securities exchange on which the Company's shares are otherwise traded. Any request under this Section must request the registration of shares in a minimum amount of five million United States dollars ($5,000,000) (or, in each caseif on Form ▇-▇, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ dollars (10$1,000,000)). Within twenty (20) days after receipt of any such Demand Registration request, the Company shall give written notice of such request to the other ShareholdersHolders (and following the first such registration, if anythe Founders) and shall include in such registration all Registrable Shares (and following the first such registration, the Founders Shares) held by all such Holders (or following the first such registration, the Founders) who wish to participate in such demand registration and thereupon shall provide the Company with written requests for inclusion therein within fifteen (i) as soon as practicable, and in any event within forty five (4515) days after the date receipt of the Demand Registration is given Company's notice. Thereupon, the Company shall effect the registration of all Registrable Shares (and, in the case of a request submitted by the Requesting ShareholderFounders, file a Founders Shares) as to which it has received requests for registration statement under for trading on the Securities Actsecurities exchange specified in the request for registration; provided, and (ii) use its commercially reasonable efforts however, that the Company -------- shall not be required to effect, as expeditiously as possible, and in effect any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.013.3 within a period of twelve (12) months following the effective date of a previous registration. Notwithstanding any other provision of this Section 3, and
if the managing underwriter advises the Holders (iiand following the first such registration, the Founders) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities writing that marketing factors require a limitation of the same class as those requested number of shares to be registered by the Requesting Shareholder that any other Shareholders (all underwritten, then there shall be excluded from such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all registration and underwriting to the extent necessary to permit satisfy such limitation, first shares held by shareholders other than the disposition Holders and Founders (in accordance with pro rata to the intended methods thereof as aforesaid) total number of Registrable Shares held by each of the Registrable Securities so to be registeredHolders of such group), provided that, then shares which the Company shall not be obligated may wish to effect a Demand Registration unless register for its own account, then shares held by the aggregate proceeds expected Founders (pro rata to be received from the sale total number of Registrable Shares held by each of the Holders of such group) and thereafter, to the extent necessary, shares held by the Holders (pro rata to the respective total number of Registrable Securities requested to Shares held by each of the Holders), provided, however, -------- that in any event all Registrable Shares must be included in such Demand Registration equals or exceeds $10,000,000registration prior to any other shares of the Company. In no event The Company shall not register securities for sale for its own account in any registration requested pursuant to this Section 3.3 unless permitted to do so by the written consent of Holders (or, in the case of a registration requested by Founders, Founders) who hold at least 66% of the Registrable Shares (or, in the case of a registration requested by Founders, Founders Shares) as to which registration has been requested. The Company shall not be required to effect more than four (4) registrations at the request of the Initiating Holders under this Section 3.3 and two (2) Demand Registrations pursuant to registrations at the request of the Founders under this Section 2.013.3.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Demand Registration. (a) If The Company agrees that, at any time following completion after the Closing Date, upon the request of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters Emerson (unless waived by such underwriter(s)a "Demand Registration"), the Company shall receive it will file a request registration statemen▇ (each such request shall be referred to herein as a “Demand Registration”▇ "▇egistration Statement") from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior specified in such request subject to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as limitations described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders5.01(b); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating provided that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated required to effectfile more than three Registration Statements that become effective and remain effective for the period referred to in Section 5.04(a), or (ii) subject to take the second proviso in Section 5.01(b), Emerson shall not make more than one request for a Demand Registration ▇▇ ▇▇▇ twelve month period, (iii) the Registrable Securities for which a Demand Registration has been requested by Emerson must be at least two million Shares (or, if less, all of the Sh▇▇▇▇ ▇▇en held by Emerson and its Subsidiaries), (iv) the proposed offering of Shares of ▇▇▇▇▇▇▇able Securities must be an underwritten offering, (v) the Company shall not be required to file a shelf registration statement pursuant to Rule 415 of the Securities Act under this Section 5.01(a), (vi) prior to the first anniversary of the Closing Date, no request to register any action Registrable Securities may be made prior to effect, any registration such time as the Company is required to file a Registration Statement for such Registrable Securities pursuant to Section 2.01 5.01(b), (vii) the Company shall not be required to effect a Demand Registration if within 10 days after receipt of a request, therefor the Company provides written notice of its bona fide intention to file within 60 days a registration statement for an underwritten public offering of securities for its own account, and (viii) the Company shall not be required to effect a Demand Registration during the period that is thirty (30) days before the Company’s good faith estimate of from the date of filing of, and ending on a date that is ninety (90) 90 days after the effective date of, any registration statement for an underwritten public offering of securities for the account of the Company. In no event shall the Company's right to block or defer a Company-initiated registration (other Demand Registration pursuant to this Article 5 permit a block or deferral of longer than a registration cumulative period of six months, and following any such deferrals, Emerson shall have the right to have a Demand Registration effected at ▇▇▇ ▇▇▇e during the six month period following such block or deferral without restriction hereunder.
(c) Pursuant to Demand Registrations the Company will not be required to register more than (i) four million Shares prior to the date that is one year after the expiration of the Lock-Up Period, (ii) eight million Shares (less any Shares registered under clause (i)) prior to the date that is two years after the expiration of the Lock-Up Period or (iii) twelve million Shares (less any Shares registered under clause (i) and (ii)) prior to the date that is three years after the expiration of the Lock-Up Period; provided that any of the numbers shall be adjusted (x) based on Form S-8 or the number of Shares in excess of twelve million Shares delivered by the Company to Emerson and its Subsidiaries at the Closing Date, (y) based on any successor or similar formsAdju▇▇▇▇▇▇ Event that occurs after the Closing Date but before the effective date of the relevant Demand Registration, and (z) if Emerson requests, and the Company consents, to increase the numbers in ▇▇▇ ▇▇▇egoing limitations (such consent not to be unreasonably withheld, where it will be reasonable for the Company to refuse such consent if it would be reasonably expected to have an adverse effect on the trading price of the Shares), the numbers in clause (b)(i) and (b)(ii) above shall be increased by no more than four million Shares multiplied by the proportion of the year that has passed (as of the date of the request) from the date that is one year and two years respectively after the expiration of the Lock-Up Period provided further that the limitations described in Sections 5.01(a)(ii), (vii) and (viii), this Section 5.01(b) and the proviso in Section 5.04(a) shall not apply if Emerson's Common Stock Interest is equal to or greater than 12.5% and n▇▇▇▇▇▇▇▇▇nding that the Company has fully performed its obligations under Article 2: (A) Emerson designates a representative to serve on the Board in accordance ▇▇▇▇ ▇ection 2.01 of this Agreement and such designee is actively employing not elected or appointed to the Board for any reason, or (B) Emerson's representative on the Board is removed and not replaced by a ▇▇▇▇▇▇▇▇▇ative designated by Emerson in good faith commercially reasonable efforts to cause such registration statement to become effectiveaccordance with Section 2.01 of this Agreement.
Appears in 1 contract
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one One or more underwriters Holders, individually or in the aggregate, following the Effective Date holding (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”x) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (more than 30%) % of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (iiy) after the completion of the Follow-On if there has been a prior Public Offering, all or any portion more than the lesser of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10A) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) 20% of the Registrable Securities so and (B) 15% of the issued and outstanding New Common Stock, shall have the right at any time to be registered, provided that, request that the Company shall not be obligated to effect register under the 1933 Act, at least 50% of the Registrable Securities held by it or them (any registration resulting from such a request a "Demand ------ Registration" with such Holder or Holders making such request the "Demanding ------------ --------- Holder"). A request for a Demand Registration unless shall specify the aggregate proceeds expected number of ------ shares of Registrable Securities proposed to be received from sold. A registration made pursuant to such a request shall not qualify as a Demand Registration hereunder until (a) the sale registration statement relating thereto has been declared effective by the SEC and (b) the Demanding Holder is able to register at least 50% of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000registration. In no event The Company shall the Company not be required to effect effect, and the Holders shall not be entitled to request, more than two (2) three Demand Registrations of the Company under this Section 4.2. No Demand Registration may require that a registration statement become effective earlier than 120 days after the effective date of the registration statement filed pursuant to this Section 2.01the immediately preceding Demand Registration. For the avoidance of doubt, in the case of any Demand Registration requested by more than one Demanding Holder, any action to be taken by the Demanding Holders will be deemed effected upon the written consent of Demanding Holders holding greater than 50% of the shares of New Common Stock requested to be included in such Demand Registration.
(b) Promptly (but in no event more than 10 days) after the expiration receipt of the seven-Business Day period referred to in Section 2.01(a)(ii)a request for a Demand Registration, the Company will notify shall provide notice of such request to the non-Demanding Holders, and each such non-Demanding Holder shall have the right, within 10 days after the date of receipt of such notice from the Company, to request that the Company include in the offering to which the Demand Registration relates all Registering Shareholders or a portion of such non-Demanding Holders' Registrable Securities, pro rata, on the identities basis of the other Registering Shareholders and the number of shares of Registrable Securities requested proposed to be included therein. At any time prior to the effective date of the registration statement relating to in such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked requestRegistration.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any If a Demand Registration, regardless of whether such Registration is effectedan underwritten offering and the managing underwriters advise the Company in writing that, unless in their opinion, the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence number of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders requested to be included in such registration have actually been offering, exceeds the number of Registrable Securities, if any, which can be sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement therein without adversely affecting the marketability of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends to distribute the Registrable Securities covered by their request by means of an underwritingoffering, they shall so advise the Company as part of their request pursuant to section 2.01, and the Company shall include in such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view(A) first, the number of shares of Registrable Securities requested to be included in such registration (including by any securities that Holders reduced pro rata, if necessary, among such Holders based on the Company proposes number of Registrable Securities requested to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registrationregistration by each such Holder, in the priority listed below(B) second, up to the Maximum Offering Size:
(i) first, if all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocatedany Holders have been included, if necessary the number of equity securities to be registered for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis account of the relative number of Registrable Securities held by each such Shareholder, Company (or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities otherwise proposed to be registered included at the request of the Company) and (C) third, if all Registrable Securities requested to be included in such registration by any Holders and the Company (including have been included, the number of equity securities to be registered for the benefit account of any other Persons not party to this Agreement)Person.
(fd) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in Notwithstanding the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed)foregoing, if the Company furnishes shall furnish to the Requesting Shareholder Demanding Holder a certificate signed by an officer of the Company’s chief executive officer Company stating that, in the reasonable good faith judgment of the Board, it would not be in the best interests of the Company and its stockholders for such registration to be effected (because the Company is engaging in or intends to engage in a Material Disclosure Event, but, in any case, not including for purposes of the Company avoiding its obligations hereunder), then the Company shall have the right to defer such registration for a period of not more than 90 days after receipt of the request of the Demanding Holder; provided, however, that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or -------- ------- shall not be entitled to defer its obligation to effect a registration for an aggregate of more than 180 days within any 365-day period and (ii) effecting the Company shall make and communicate to the Demanding Holder its determinations under this paragraph in respect of a registration under this Section 4.2 within 15 days of the Company's receipt of the Demand Registration notice in respect of such registration or, to the extent reasonably practicable, promptly after becoming aware of any transaction or extraordinary event giving rise to such determination. Each Holder agrees that in the event it receives any notice from the Company under this Section 4.2(d), it will keep the fact of such notice confidential, except as otherwise required by law.
(e) The Demanding Holder shall select the book-running and other managing underwriters in connection with an offering pursuant to a Demand Registration, and any additional investment bankers and managers to be used in connection with the offering, in each case which shall be reasonably satisfactory to the Company. The Demanding Holder shall, in consultation with the managing underwriter(s), have the power to determine the offering price, the underwriting discounts and commissions, the terms of the underwriting agreement, the timing of the registration would require and related offering and all other administrative matters related to the premature disclosure registration and related offering. To the extent that Holders other than the Demanding Holder elect to participate in such Demand Registration and related offering, such other Holders shall, subject to the price to such Holders being satisfactory to such Holders, enter into, and sell their Registrable Securities only pursuant to, the offering pursuant to the Demand Registration, and shall, subject to the price to such Holders being satisfactory to such Holders, either commit to attend the closing of material information that the offering pursuant thereto and take such other actions as may be reasonably necessary to effect their participation in the offering and to provide any assurances reasonably requested by the managing underwriter(s) or the Company has in that regard, or shall deliver to the Company, in custody, certificates representing all Registrable Securities to be included in the registration and shall execute and deliver to the Company a bona fide business custody agreement and power of attorney, each in form and substance appropriate for the purpose to preserve as confidentialof effecting their participation in such Demand Registration. In additionaddition to any other obligations of the Company hereunder, the Company shall not cooperate with the Holders participating in the Demand Registration and the managing underwriter(s) and their counsel and take such other actions as may be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during reasonably necessary in connection with 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveforegoing.
Appears in 1 contract
Demand Registration. (a) If at At any time following completion after 180 days after the initial public offering of the Initial Public Offering, subject Common Stock pursuant to an effective registration under the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))Securities Act, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group holders of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%i) a majority of the Registrable Securities then outstanding, that held by the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), Great Hill Investors or (ii) after the completion holders of at least a majority of the Follow-On OfferingRegistrable Securities held by the BACI Investors, as applicable and in accordance with this Section 2, may notify the Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities in the Requesting Shareholdermanner specified in such request. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Stockholders holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the inclusion of such Person’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration underwritten public offering to the other Shareholders, if any, and thereupon shall extent provided herein. The Company will use its best efforts to expeditiously effect (i) as soon as practicable, and but in any event within forty no later than forty-five (45) days after such request) the date the Demand Registration is given by the Requesting Shareholder, file a registration statement of all Registrable Securities whose holders request participation in such registration under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all but only to the extent necessary to permit the disposition (provided for in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registeredthis Agreement; provided, provided thathowever, that the Company shall not be obligated required to effect registration pursuant to a Demand Registration unless request under this Section 2 more than (i) three (3) times for the aggregate proceeds expected to be received from Great Hill Investors or (ii) one (1) time for the sale BACI Investors; provided, that if the BACI Investors have requested a demand registration for a number of Registrable Securities that would result in the BACI Investors owning less than five percent (5%) of the Registrable Securities requested Company’s outstanding Common Stock, but after giving effect to be included in any reductions pursuant to Section 2(b), the BACI Investors continue to hold at least five percent (5%) of the Company’s then outstanding Common Stock following such Demand Registration equals or exceeds $10,000,000. In no event shall demand registration by the BACI Investors, the Company shall be required to effect more than two one (21) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a additional registration pursuant to a request from the BACI Investors in accordance with the terms hereof. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 2 within ninety (90) days after the effective date ofof a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this section 2(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating Stockholders; provided, however, that a Company-initiated majority in interest of the Great Hill Investors or the BACI Investors, as applicable, may request, in writing, that the Company withdraw a registration statement which has been filed pursuant to their request and under this Section 2(a) but has not yet been declared effective, and a majority in interest of such Stockholders may
(b) If a requested registration involves an underwritten public offering and the managing underwriter of such offering determines in good faith that the number of securities sought to be offered should be limited due to market conditions, then the number of securities to be included in such underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company pursuant to such registration statement, (iv) Registrable Securities of Management Stockholders and, if necessary, (v) Registrable Securities of Investors. If there is a reduction of the number of Registrable Securities pursuant to clauses (iv) or (v), such reduction shall be made on a pro rata basis (based upon the aggregate number of Registrable Securities held by such Stockholders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be chosen by a majority in interest of the Great Hill Investors or the BACI Investors, as applicable, to be sold in such offering (which approval will not be unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration on Form S-8 effected solely to implement an employee benefit plan or any successor or similar forms), provided that a transaction to which Rule 145 of the Company Securities Act is actively employing in good faith commercially reasonable efforts to cause such registration statement applicable) to become effectiveeffective within one hundred twenty (120) days following the effective date of any registration required pursuant to this Section 2.
Appears in 1 contract
Sources: Registration Rights Agreement (Ign Entertainment Inc)
Demand Registration. (a) If at At any time following completion after the -------------------- expiration of six months after the IPO, TDF may request the Company to register under the Securities Act all or a portion of the Initial Public Offeringshares of Restricted Shares held by it for sale in the manner specified in such notice; provided, subject that (i) -------- the reasonably anticipated aggregate net proceeds to the terms sellers from such public offering would exceed $30,000,000, (ii) such request covers at least 5% of the Voting Securities then outstanding and (iii) no such request may be made by TDF more than once every nine months. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 4.02 within 90 days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Restricted Shares shall have been entitled to join pursuant to Sections 4.01 or 4.03 and in which there shall have been effectively registered all shares of Restricted Shares as to which registration shall have been requested.
(b) At any time after the expiration of six months after the IPO, any Stockholder or group of Stockholders may request the Company to register under the Securities Act all or a portion of the shares of Restricted Shares held by such Stockholder or group of Stockholders for sale in the manner specified in such notice; provided, that (i) the reasonably anticipated aggregate net -------- proceeds to the sellers from such public offering would exceed $30,000,000, (ii) such request covers at least 5% of the Voting Securities then outstanding and (iii) no such request may be made by such Stockholders or group of Stockholders more than once every nine months. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 4.02 within 90 days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Restricted Shares shall have been entitled to join pursuant to Sections 4.01 or 4.03 and in which there shall have been effectively registered all shares of Restricted Shares as to which registration shall have been requested.
(c) Following receipt of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))notice under this Section 4.02, the Company shall receive a request (each such request immediately notify all holders of Restricted Shares from whom notice has not been received and shall be referred use its best efforts to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement register under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (public sale in accordance with the intended methods thereof as aforesaid) method of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included disposition specified in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its viewfrom requesting holders, the number of shares of Registrable Securities requested Restricted Shares specified in such notice (and in all notices received by the Company from other holders within 20 days after the giving of such notice by the Company). If such method of disposition shall be an underwritten public offering, the holders of a majority of the shares of Restricted Shares to be included sold in such registration (including any securities that offering may designate the Company proposes to be included that are not Registrable Securities) exceeds the largest number managing underwriter of shares that can be sold without having an adverse effect on such offering, including subject to the price at approval of the Company, which approval shall not be unreasonably withheld or delayed. The Company shall be obligated to register Restricted Shares pursuant to Section 4.02(a) on three occasions only and pursuant to Section 4.02(b) on three occasions only, provided, however, that such obligations shall be deemed satisfied only when a -------- ------- registration statement covering all shares of Restricted Shares specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares can be shall have been sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
pursuant thereto unless (i) first, all Registrable Securities requested any such registration statement does not become effective due to the withdrawal thereof by or on the request of the holders of 66 2/3% of the shares of Restricted Shares to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, registered or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit reason all shares of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration Restricted Shares specified in notices pursuant to this Section 2.01 4.02 are not registered is due to a limitation on two occasions during the registration of shares by the managing underwriter (which limitation shall be applied pro rata) and no more than 50% of the Restricted Shares so specified are not registered as a result of the limitation imposed by such managing underwriter or the voluntary withdrawal of any period such shares from registration by the holder thereof.
(d) The Company shall be entitled to include in any registration statement referred to in this Section 4.02, for sale in accordance with the method of twelve consecutive months disposition specified by the requesting holders, shares of Common Stock to be sold by the Company for a reasonable time specified its own account, except as and to the extent that, in the notice but not exceeding 90 days in opinion of the aggregate in any period managing underwriter (if such method of twelve consecutive months (which period may not disposition shall be extended or renewedan underwritten public offering), if such inclusion would adversely affect the Company furnishes marketing of the Restricted Shares to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the be sold. Except for registration would materially and adversely interfere with a significant acquisitionstatements on Forms ▇-▇, corporate reorganization, ▇-▇ or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In additionany successor thereto, the Company shall will not be obligated file with the Commission any other registration statement with respect to effectits Common Stock, whether for its own account or to take any action to effectthat of other stockholders, any registration pursuant to Section 2.01 during the period that is thirty (30) days before the Company’s good faith estimate of from the date of filing of, and ending on receipt of a date that is ninety (90) notice from requesting holders pursuant to this Section 4.02 90 days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), provided that commencement of the Company is actively employing in good faith commercially reasonable efforts to cause such public offering of the Restricted Shares covered by the registration statement requested pursuant to become effectivethis Section 4.02.
Appears in 1 contract
Sources: Stockholders Agreement (Crown Castle International Corp)
Demand Registration. (a) If at At any time following completion of the Initial Public Offering, subject prior to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein time as the “Requesting Shareholder”)rights under this Section 2 terminate with respect to a Holder as provided in Section 2(e) hereof, holding at least thirty percent (30%upon written notice from such Holder in the manner set forth in Section 12(h) of the Registrable Securities then outstanding, hereof requesting that the Company effect the registration under the Securities Act (i) for the first Public Offering of any or all of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding held by such Holder, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Company shall use its best efforts to effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including in an offering on a delayed or continuous basis under Rule 415 (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (iisuccessor rule to similar effect) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement promulgated under the Securities Act, if (x) the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering and (iiy) use its commercially reasonable efforts the Company consents to effect, as expeditiously as possible, and in any event within one hundred twenty such an offering (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness except that no consent of the registration statementCompany will be required if the contemplated offering on a delayed or continuous basis under Rule 415 is the offering of Registrable Securities upon the exercise, in each case coveringexchange or conversion of Exchangeable Securities as contemplated by Section 6 hereof)), provided that:
(i) subject to the restrictions set forth in Sections 2.01(e)if, all Registrable Securities for which the Requesting Shareholder has requested within 5 business days of receipt of a registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register request pursuant to this Section 2.012(a), by the Holder or Holders making such request received are advised in writing that the Company has in good faith commenced the preparation of a registration statement for an underwritten public offering prior to receipt of the notice requesting registration pursuant to this Section 2(a) and the managing underwriter of the proposed offering has determined that in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect the offering that is contemplated by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period 2(a) (a "Transactional Deferral") until the earliest of twelve consecutive months for a reasonable time specified in (A) the notice but not exceeding 90 days in the aggregate in any period abandonment of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed such offering by the Company’s chief executive officer stating , (B) 60 days after receipt by the Holder or Holders requesting registration of the managing underwriter's written opinion referred to above in this clause (i), unless the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, and (C) if the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, the day on which the restrictions on the Holders contained in Section 10 hereof lapse, provided, however, that the Company shall not be permitted to delay a requested registration in reliance on this clause (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or more than once in any 12-month period;
(ii) effecting if, while a registration request is pending pursuant to this Section 2(a), the Company determines, following consultation with and receiving advice from its legal counsel, that the filing of a registration statement would require the premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and the disclosure of which the Company determines reasonably and in good faith would have a material adverse effect on the Company, the Company shall not be required to preserve as confidential. In addition, effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such material information is otherwise disclosed to the public or ceases to be material and (B) 90 days after the Company makes such determination;
(iii) the Company shall not be obligated to effect, or file a registration statement relating to take any action to effect, any a registration request pursuant to this Section 2.01 during 2: (A) prior to the period that is thirty (30) days before the Company’s good faith estimate first anniversary of the date closing of filing ofthe Public Offering, and ending on (B) within a date that is ninety (90) period of 365 calendar days after the effective date ofof any other registration statement of the Company demanded pursuant to this Section 2(a), or (C) if such registration request is for a number of Registrable Securities having a Fair Market Value on the business day immediately preceding the date of such registration request of less than $50,000,000.00; and
(iv) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) in the case of a registration request by Zapa▇▇ ▇▇ any Permitted Transferee that has acquired, in the transaction in which it became a Permitted Transferee, at least a majority of the then issued and outstanding Voting Stock, on more than three occasions after such time as Zapa▇▇ ▇▇ such Permitted Transferee, as the case may be, owns less than a majority of the voting power of the outstanding capital stock of the Company (it being acknowledged that so long as Zapa▇▇ ▇▇ such Permitted Transferee owns a majority of the voting power of the outstanding capital stock of the Company-initiated , there shall be no limit to the number of occasions on which Zapa▇▇ ▇▇ such Permitted Transferee may exercise such rights in accordance with, and subject to, the other provisions hereof), or (B) in the case of a Holder other than Zapa▇▇ ▇▇ a Permitted Transferee described in clause (A) above, on more than the number of occasions permitted such Holder in accordance with Section 11 hereof.
(b) Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (A) unless the registration statement filed in connection therewith has become effective, (B) if after such registration statement has become effective, it becomes subject to any stop order, or there is issued an injunction or other order or decree of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of the Registrable Securities so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration on Form S-8 statement or any successor (C) if the conditions to closing specified in the purchase agreement or similar forms)underwriting agreement entered into in connection with such registration are not satisfied by reason of some act, provided that misrepresentation or omission by the Company is actively employing and are not waived by the purchasers or underwriters; and
(ii) nothing herein shall modify a Holder's obligation to pay Registration Expenses, in good faith commercially reasonable efforts accordance with Section 4 hereof, that are incurred in connection with any withdrawn registration requested by such Holder.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Fair Market Value of the Registrable Securities to be registered in connection with such offering shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering, and the Company shall have the right to designate one underwriter reasonably satisfactory to such Holders as a co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by any Holder pursuant to Section 2(a) only to the extent the managing underwriter or other independent marketing agent for such offering (if any) determines that, in its opinion, the additional securities proposed to be sold will not materially and adversely affect the offering and sale of the Registrable Securities to be registered in accordance with the intended method or methods of disposition then contemplated by such Holder. The rights of a Holder to cause the registration of additional Registrable Securities held by such Holder in any registration of Registrable Securities requested by another Holder pursuant to Section 2(a) shall be governed by the agreement of the Holders with respect thereto as provided in Section 11(a).
(e) The Company shall not be obligated to file a registration statement relating to become effectivea registration request by a Holder pursuant to this Section 2 from and after such time as such Holder first owns Registrable Securities representing (assuming for this purpose the conversion, exchange or exercise of all Registrable Securities then owned by such Holder that are convertible into or exercisable or exchangeable for Voting Stock of the Company) less than 10% of the then issued and outstanding Voting Stock of the Company.
Appears in 1 contract
Demand Registration. (a) If a. The Company covenants and agrees that at any time following completion after receipt of a written request (a "Demand Registration Request") from the holders of this Warrant and the Other Warrants and/or holders of Shares (this Warrant, the Other Warrants, and the Shares are referred to herein, collectively, as the "Securities") (hereinafter, the "Securityholders") constituting at least fifty percent (50%) of the Initial Public OfferingSecurities outstanding on such date (determined on an as-exercised basis) and then eligible for inclusion in a registration pursuant to this Section 9.1, subject stating that the Initiating Securityholders (as defined below) desire and intend to transfer all or a portion of the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived Securities held by them under such underwriter(s))circumstances, the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders give notice (the requesting Shareholder(s"Registration Notice") shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) all of the Registrable Securityholders within fifteen (15) days of the Company's receipt of such registration request, and the Company shall cause to be included in such requested registration all Securities then outstandingrequested to be included therein by any such Securityholder within fifteen (15) days after such Registration Notice is effective (subject to the provisions of the final sentence of this Section 9.1(a)). After such second 15-day period, the Company shall file as promptly as practicable a registration statement and use its reasonable best efforts to cause such registration statement to become effective under the Act and remain effective for one hundred and twenty (120) days or such shorter period as may be required if all such Securities covered by such registration statement are sold prior to the expiration of such 120-day period; provided that the Company shall not be obligated to effect the any such registration under the Securities Act pursuant to this Section 9.1 (i) for the first Public Offering of after the Company after the completion of the Initial Public Offering has effected two (the “Follow-On Offering”), at least twenty percent (20%2) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), such registrations pursuant to this Section 9.1 or (ii) after the completion fifth anniversary of the FollowDate of Grant (provided that a registration effective on or before such anniversary date shall remain effective for the full 120-On Offeringday period (or such shorter period) as is provided for in this sentence above). Each Securityholder making a demand for registration under this Section 9.1 is referred to herein as an "Initiating Securityholder." For purposes of this Section 9, all a registration shall not be deemed to have been effected unless a registration statement with regard thereto has been declared effective and remained effective for a period of one hundred and twenty (120) days (or any such shorter period as is permitted in the second sentence of this Section 9.1). The foregoing notwithstanding, in the event of an underwritten offering pursuant to this Section 9.1, if the managing underwriter of such offering shall advise the Securityholders in writing that, in its opinion, the distribution of a specified portion of the Requesting Shareholder’s Registrable Securities and, securities requested to be included in each case, specifying the intended method registration would materially adversely affect the distribution of disposition thereofsuch securities by increasing the aggregate amount of the offering in excess of the maximum amount of securities which such managing underwriter believes can reasonably be sold in the contemplated distribution, then the securities to be included in the registration shall be included in the following order: (i) first, all of the Securities requested to be included therein by the Initiating Securityholders, (ii) second, the Securities requested to be included therein by the other Securityholders, pro rata among such Securityholders according to the number of Securities requested to be included by each such Securityholder requesting inclusion therein, and (iii) third, the securities the Company proposes to include therein and (iv) fourth, such other securities requested to be included therein, pro rata among the holders of such other securities according to the number of securities requested to be included by each such holder requesting inclusion therein.
b. For purposes of this Section 9.1, the Securityholders who have requested registration of Warrants, or Shares to be acquired upon the exercise of Warrants not theretofore exercised, shall furnish the Company with an undertaking that they or the underwriters or other persons to whom such Warrants will be transferred have undertaken to exercise such Warrants within a 120-day period determined in accordance with Section 9.1(a).
c. In the event of an underwritten offering pursuant to this Section 9.1, the Initiating Securityholders requesting registration of the Securities being registered shall be entitled to select the underwriter; provided, that the underwriter so selected shall be subject to approval by the Company, which approval shall not be withheld unreasonably.
d. Notwithstanding the terms of Section 9.1(a), the Company shall as promptly as practicable following not be required to register the date Securities of receipt by Securityholders pursuant to Section 9.1, if the Company elects, at its sole option and to the extent that it may legally do so, to purchase such Securities and completes such purchase pursuant to the provisions of such request give notice of such Demand Registration at least this Section 9.1(d). Within fifteen (1015) days after receipt of such a Demand Registration Request, the Company may elect to purchase all and not less than all of the other Shareholders, if any, and thereupon shall Securities that would otherwise be subject to registration pursuant to Section 9.1(a) by providing written notice (the "Purchase Notice") to all of the Securityholders setting forth (i) as soon as practicableits election to purchase such Securities, (ii) the purchase price of the Securities, and (iii) the closing date for such purchase. The Company shall thereafter purchase all of the Securities requested to be included in any event such purchase by the Securityholders within forty fifteen (15) days after the Purchase Notice becomes effective. The purchase price for each Share shall be the fair market value (as defined in Section 4) of a share of Common Stock on the date of the Demand Registration Request; the purchase price for each Warrant shall be (x) the fair market value (as defined in Section 4) of a share of Common Stock on the date of the Demand Registration Request less (y) the Warrant Price as of such date. The closing of the purchase of the Securities shall take place on the date set forth in the Purchase Notice, which date shall be not less than fifteen (15) not more than forty-five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to Purchase Notice. At the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatclosing, the Company shall not be obligated deliver to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included each Securityholder, in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii)cash, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company purchase price for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or surrendered by such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtSecurityholder.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Demand Registration. (a) If at any time following completion Subject to Section 2(b) and Section 6, upon the expiration of the Initial Public OfferingLock-up Period, subject certain Demanding Holders, as set forth below, may request that the Company effect the registration of offers and sales related to their Registrable Shares under the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by Securities Act, and upon such underwriter(s)), request the Company shall receive a request (each such request shall be referred promptly use its reasonable best efforts to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act of such Registrable Shares (a “Demand Registration”). Each holder of Registrable Shares who is an Investor Shareholder (i) for the first Public Offering of the Company after the completion of the Initial Public Offering holding (the “Follow-On Offering”), at least twenty together with its Affiliates) greater than ten percent (2010%) of the Requesting ShareholderCompany’s Registrable Securities then then-issued and outstanding (or any lesser percentage if Effective Shares shall have the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such right to request give notice of such unlimited Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, Registrations and (ii) use holding (together with its commercially reasonable efforts to effect, as expeditiously as possible, Affiliates) between five percent (5%) and in any event within one hundred twenty ten percent (12010%) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
Company’s then-issued and outstanding Effective Shares will be entitled to request two (i2) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
Demand Registrations (ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholdercollectively, the “Registering ShareholdersDemanding Holders”), if any, have requested the Company to register pursuant to . ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(b) Notwithstanding anything contained in this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all 2 to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided thatcontrary, the Company shall not be obligated to effect a Demand Registration unless any registration under the aggregate proceeds expected to be received from Securities Act except in accordance with the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. following provisions:
(i) In no event shall the Company be required to effect in the aggregate more than four (4) Demand Registrations in any twelve (12) month period and no Demanding Holder may request more than two (2) Demand Registrations in any one hundred eighty (180)-day period; provided, however, if the Demanding Holders are unable to sell at least a majority of the Registrable Shares to be included in any registration pursuant to this Section 2.012 as a result of an underwriter’s cutback pursuant to Section 2(b)(iii), then such registration shall not be considered a requested Demand Registration by such Demanding Holder for purposes of Section 2(a) (although such registration shall be considered as a Demand Registration for purposes of the aggregate limitation set forth in this Section 2(b)(i), other than with respect to any Demanding Holder holding (together with its Affiliates) greater than ten percent (10%) of the Company’s then-issued and outstanding Effective Shares who, to the extent such Demanding Holder has not requested a Demand Registration for such twelve (12) month period, shall be entitled to one additional Demand Registration for such twelve (12) month period).
(bii) Promptly The Company may delay the filing or effectiveness of any registration statement for a period of up to ninety (90) days after the expiration date of a request for a Demand Registration pursuant to Section 2(a) if at the time of such request: (X) the Company is engaged, or has fixed plans to engage within ninety (90) days of the seventime of such request, in a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares have been or will be permitted to include all the Registrable Shares so requested to be registered pursuant to Section 3, (Y) the Board reasonably determines that such registration and offering would interfere with any Material Transaction or (Z) within the last forty-Business Day period referred to in Section 2.01(a)(ii), five (45) days the Company will notify all Registering Shareholders has completed a firm commitment underwritten public offering of Primary Shares in which the identities of the other Registering Shareholders and the number of shares holders of Registrable Securities Shares have been permitted to include Registrable Shares.
(iii) With respect to any registration pursuant to this Section 2, (A) the Company shall give notice of such registration, in accordance with the provisions of Section 3 hereunder, to each holder of Registrable Shares and shall offer to and shall include in such proposed registration any Registrable Shares requested to be included therein. At any time prior in such proposed registration by each holder of Registrable Shares, provided that such holder responds in writing to the effective date Company’s notice within ten (10) days after delivery by the Company of such notice (which response shall specify the registration statement relating number of Registrable Shares such holder is requesting to include in such registration), the Requesting Shareholder may revoke such request, without liability, by providing a notice to and (B) the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included may include in such registration have actually been sold thereunder)any Primary Shares or Other Shares; provided, provided however, that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and if the managing underwriter advises the Company and that the Requesting Shareholder thatinclusion of all Registrable Shares, in its view, the number of shares of Registrable Securities Primary Shares and/or Other Shares requested to be included in such registration would interfere with the successful marketing (including any securities that pricing) of the Company proposes Registrable Shares proposed to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, then, the number of Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration shall be included in the priority listed below, up to the Maximum Offering Sizefollowing order:
(iA) first, all the Investor Shares that are not subject to (or in relation to which the Company has waived) any Subsequent Lock-up (or, if necessary, such Investor Shares pro rata among the holders thereof based upon the number of Investor Shares requested to be registered by each such Investor Shareholder); ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(B) second, the Primary Shares;
(C) third, the Management Shares (or, if necessary, such Management Shares pro rata among the holders thereof based upon the number of Management Shares requested to be registered by each such holder); and
(D) fourth, the Other Shares; provided, that at the election of the Company, (i) any registration pursuant to this Section 2 may be converted into a registration pursuant to Section 3 (in which event, such registration shall not be considered to be a requested Demand Registration by such Demanding Holder for purposes of Section 2(a) (although such registration shall be considered as a Demand Registration for purposes of the aggregate limitations set forth in Section 2(b)(i), other than with respect to any Demanding Holder holding (together with its Affiliates) greater than ten percent (10%) of the Company’s then-issued and outstanding Effective Shares who, to the extent such Demanding Holder has not requested a Demand Registration for such twelve (12) month period, shall be entitled to one additional Demand Registration for such twelve (12) month period) or (ii) with the consent of the Demanding Holders, the Primary Shares may be set at the same priority level as the Registrable Securities Shares thereby being cutback on a pro rata basis based upon the number of Registrable Shares and Primary Shares requested to be included in such registration statement by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number holders of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by Shares and the Company (including for the benefit of any other Persons not party to this Agreement)Company.
(fiv) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or effect any Demand Registration requested by any Demanding Holder if the anticipated gross offering price of all Registrable Shares to take any action be included therein would be less than $10,000,000.
(v) If the holders of the Registrable Shares requesting to effect, any registration be included in a Demand Registration pursuant to Section 2.01 during 2(a) so elect, the period that is thirty offering of such Registrable Shares pursuant to such Demand Registration shall be in the form of an underwritten offering. The Company shall select one or more nationally recognized firms of investment bankers reasonably acceptable to the Majority Demanding Holders to act as the lead managing underwriter or underwriters in connection with such offering.
(30vi) days At any time before the registration statement covering such Registrable Shares becomes effective, a Demanding Holder may request the Company to withdraw or to not file the registration statement for which it had previously requested a Demand Registration pursuant to Section 2(a). Upon delivery of a notice by a Demanding Holder to such effect, the Company shall cease all efforts to secure effectiveness of the applicable registration statement and such Demanding Holder shall be deemed to have used one of its Demand Registrations pursuant to Section 2(a), unless such request of withdrawal was caused by, or made in response to, (A) a material adverse effect or a similar event related to the business, properties, condition, ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT or operations of the Company not known (without imputing the knowledge of any other Person to such holders) by such Demanding Holder at the time its request was made, or other material facts not known to such Demanding Holder at the time its request was made, or (B) a material adverse change in the financial markets. In addition, any such withdrawn registration shall not be considered to be a requested Demand Registration by such Demanding Holder for purposes of Section 2(a) if the Company shall have been reimbursed (in the absence of any agreement to the contrary, pro rata by the Demanding Holders) for all out-of-pocket expenses incurred by the Company in connection with such withdrawn registration (although, notwithstanding any reimbursement, such withdrawn registration shall be considered as a Demand Registration for purposes of the aggregate limitations set forth in Section 2(b)(i), other than with respect to any Demanding Holder holding (together with its Affiliates) greater than ten percent (10%) of the Company’s good faith estimate of then-issued and outstanding Effective Shares who, to the date of filing ofextent such Demanding Holder has not requested a Demand Registration for such twelve (12) month period, and ending on a date that is ninety shall be entitled to one additional Demand Registration for such twelve (9012) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar formsmonth period), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Demand Registration. (a) If at At any time following completion of after the Initial Public Offering, subject to Closing Date (as defined in the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)Purchase Agreement), upon the Company shall receive a written request of Investors (each such request shall be referred to herein as a “Demand Registration”defined below) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty an aggregate of twenty-five percent (3025%) of the Registrable Securities (as defined below) then outstandingoutstanding (the "Requesting Holders"), that the Company effect the registration shall use its reasonable best efforts to register under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering 1933, as amended (the “Follow-On Offering”), at least twenty percent (20%"Securities Act") of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall (as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given required by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaidHolders) of the Registrable Securities so to be registeredheld by the Requesting Holders having an aggregate offering or sale price of at least $5,000,000, provided that, for sale in the manner specified in such notice (a "Demand Registration"). The Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) three Demand Registrations pursuant to this Section 2.01.
or Qualifications (b) Promptly after as defined in the expiration of the seven-Business Day period referred to in Section 2.01(a)(iiCanadian qualification agreement entered into at Closing), in the aggregate; provided, however, that in the event the Purchaser acquires Warrant Shares upon the exercise of Warrants (as defined in the Purchase Agreement) within 30 days following a request by the Company will notify all Registering Shareholders of that the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registrationPurchaser exercise Warrants, the Requesting Shareholder Purchaser may revoke such request, without liability, by providing make a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be request for a Demand Registration unless of some or all the Warrant Shares so acquired (notwithstanding that such Warrant Shares may have an aggregate offering or sale price of less than US$5,000,000), and such Demand Registration will not count as one of the three Demand Registrations otherwise allowed by this Agreement.
a. For the purposes of this Agreement, "Registrable Securities" shall mean (i) such revocation arose out of common shares in the fault capital of the Company purchased by the Purchaser pursuant to the Purchase Agreement (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request"Common Shares") or and (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses common shares issuable upon exercise of Warrants (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described defined in the last sentence of Section 2.01(bPurchase Agreement) ("Warrant Shares" and together with the Common Shares, the "Shares").
(d) A Demand Registration ; provided that such securities shall not cease to be deemed to have occurred unless the registration statement relating thereto Registrable Securities when (i) has become effective a registration statement registering all such Registrable Securities under the Securities Act has been declared or becomes effective and such Registrable Securities have been sold or otherwise transferred by the holder thereof pursuant to such effective registration statement; (ii) has remained effective for a period of at least 180 days (or such shorter period Registrable Securities are sold pursuant to Rule 144 under circumstances in which all any legend borne by such Registrable Securities of relating to restrictions on the Registering Shareholders included transferability thereof, under the Securities Act or otherwise, is removed by the Company in accordance with applicable law; or (iii) such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on any restriction by the volume limitations of Rule 144(e) of the Securities Act; or (iv) such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested are transferred to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering a person that does not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis become an Investor within 10 business days of the relative number of acquiring Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)Securities.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Registration Rights Agreement (Electrum Strategic Resources LLC)
Demand Registration. (a) If at any time following completion of the Following an Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive use all commercially reasonable efforts to qualify for Registration on Form S-3 for secondary sales. After the Company has qualified for the use of Form S-3, Investors holding a majority of the outstanding Registrable Securities then held by all Investors shall have the right to request not more than three (each such request shall be referred 3) Registrations on Form S-3 with respect to herein as all or a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) part of the Registrable Securities then outstanding, that held by all the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders Investors (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (requests shall be in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company writing and shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and state the number of shares of Registrable Securities requested to be included therein. At any time prior to disposed of and the effective date intended method of disposition of shares by the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunderInvestors), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration such Registration pursuant to this Section 2.01 during 2(b):
(i) Unless the Investors propose to dispose of shares of Registrable Securities having an aggregate price to the public (before deduction of underwriting discounts and expenses of sale) of more than $5,000,000;
(ii) Within 180 days of the effective date of the most recent Registration pursuant to this Section 2(b) in which securities held by the Investors could have been included for sale or distribution; or
(iii) During the period that is starting with the date thirty (30) days before prior to the Company’s good faith estimate of the date of filing of, and ending on a the date that is ninety (90) days after immediately following the effective date of, a Company-initiated any registration statement pertaining to securities of the Company (other than a registration on Form S-8 Registration of securities in a Rule 145 transaction or any successor or similar formswith respect to an employee benefit plan), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; provided, however, that the Company may only delay an offering pursuant to this Section 2(b)(iii) for a period of not more than sixty (60) days, if a filing of any other registration statement is not made within that period and the Company may only exercise this right once in any twelve (12) month period. The Company shall give written notice to all Other Stockholders of the receipt of a request for Registration pursuant to this Section 2(b) and shall provide a reasonable opportunity for such Other Stockholders to participate in the Registration, provided that if the Registration is for an underwritten offering, the terms of Section 2(a)(ii) shall apply to all participants in such offering. Subject to the foregoing, the Company will use all commercially reasonable efforts to effect promptly the Registration of all shares of Registrable Securities on Form S-3 to the extent requested by the holders thereof for purposes of disposition.
Appears in 1 contract
Sources: Registration Rights Agreement (Old Glory Holding Co)
Demand Registration. (a) If Subject to the restrictions set forth below, if at any time following completion after the date that is six (6) months after the consummation of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), IPO the Company shall receive a request from the Holders (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting ShareholderHolders”), holding at least thirty percent (30%) owning as of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering date of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), such request at least twenty percent (20%) of the Requesting Shareholder’s then outstanding shares of Registrable Securities then outstanding a written request to register at least fifty percent (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii50%) after the completion of the Follow-On Offering, aggregate number of Registrable Securities owned by all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying Holders as of the intended method date of disposition thereofsuch request, then the Company shall as promptly as practicable following the date of receipt by the Company of such request will give notice of such Demand Registration at least fifteen request to all Holders within ten (10) days after receipt of receiving such Demand Registration to the other Shareholders, if any, request and thereupon shall (i) effect as soon thereafter as practicable, and in any event within forty forty-five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities receipt of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by which any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested Holder requests to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) registered. The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.01 2.01:
(a) during the period that is thirty starting with the date sixty (3060) days before prior to the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety one hundred eighty (90180) days after the effective date of, a Company-initiated registration (other than a registration on Form S-8 or any successor or similar forms), Registration; provided that the Company is has delivered notice of such Registration to the Holders prior to its receipt of the Holders’ written request for a demand Registration, and it continues to actively employing employ in good faith commercially all reasonable efforts to cause such registration statement Registration Statement to become effective; or
(b) if the Holders have requested an Underwritten Registration, the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or
(c) if the managing underwriter or other investment banker advising the Company provides the Board of Directors with a good faith estimate that the gross proceeds of the sale of such Registrable Securities is not likely to exceed Five Million Dollars ($5,000,000); or
(d) if in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to such Holders a certificate signed by the President 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 for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period. Furthermore, the Company shall not be required to effect more than two (2) Long-Form Registrations under this Section 2.01 on behalf of the Holders; provided, however, that a Registration shall not be counted for such purposes unless such Long-Form Registration has become effective and all of the Registrable Securities requested by the Requesting Holders to be registered on behalf of the Requesting Holders in such Long-Form Registration have been sold, in accordance with Section 3.01(a) of this Agreement. The Company shall be required to effect an unlimited number of Short-Form Registrations under this Section 2.01 on behalf of the Holders; provided, however, that the Company will not be obligated to effect any such Short-Form Registration:
(a) if Form S-3 is not available for such offering;
(b) if in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to such Holders a certificate signed by the President 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 for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period;
(c) if the Company has effected one (1) Short-Form Registration within the six (6) month period prior to the current request for Short-Form Registration; or
(d) if the Registrable Securities to be covered by such registration statement do not, in the aggregate, exceed $5,000,000.
Appears in 1 contract
Sources: Registration Rights Agreement (Construction Partners, Inc.)
Demand Registration. (a) If at any time following completion of the Initial Public Offering, subject 2.1 Registration Other Than on Form F-3 or Form S-3. Subject to the terms of this Agreement, at any “lock-up” agreement entered into with one time or from time to time after the earlier of (a) the [***] anniversary of the Effective Date or (b) the date that is [***] months after the closing of the IPO, Holders holding [***] or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the voting power of the then outstanding Registrable Securities then outstanding, held by all Holders may request in writing that the Company effect the registration under the Securities Act (i) for the first Public Offering a Registration of at least [***] of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any a lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000is in excess of US$[***]). Upon receipt of such a request, or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (x) within ten (10) days after receipt the date such request is given, give written notice of such Demand the proposed Registration to the all other Shareholders, if any, Holders and thereupon shall (iy) as soon as practicable, and in any event within forty sixty (60) days after the date such request is given by the Initiating Holders, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within thirty (30) days after the Company’s delivery of written notice, to be Registered and qualified for sale and distribution in such jurisdiction as the Initiating Holders may request. The Company shall be obligated to consummate no more than two (2) Registrations pursuant to this Section 2.1 that have been declared and ordered effective.
2.2 Registration on Form F‑3 or Form S-3. The Company shall use its reasonable best efforts to qualify for registration on Form F-3 or Form S-3. Subject to the terms of this Agreement, if the Company qualifies for registration on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the United States), Holders of at least [***] of the Registrable Securities then outstanding may request the Company to file, in any jurisdiction in which the Company has had a registered underwritten public offering, a Registration Statement on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the United States), including any registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or a delayed basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule that may be adopted by the Commission. Upon receipt of such a request, the Company shall (a) within ten (10) days after the such request is given, give written notice of the proposed Registration to all other Holders and (b) as soon as practicable, and in any event within forty-five (45) days after the date the Demand Registration such request is given by the Requesting ShareholderInitiating Holders, file a registration statement under the Securities Act, and (ii) use its commercially reasonable best efforts to effectcause the Registrable Securities specified in the request, as expeditiously as possible, and together with any Registrable Securities of any Holder who requests in any event writing to join such Registration within one hundred twenty thirty (12030) days after the date the Demand Registration is given by the Requesting ShareholderCompany’s delivery of written notice, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the Registered and qualified for sale of the Registrable Securities requested to be included and distribution in such Demand Registration equals or exceeds $10,000,000jurisdiction. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the The Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or consummate no more than two Registrations that have been declared and ordered effective within any twelve (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a 12)-month period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective2.2.
Appears in 1 contract
Demand Registration. (a) If at If, on any time following completion of the Initial Public Offeringtwo occasions subsequent ------------------- to March 15, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s))2000, the Company shall receive a written request from Eligible Holders who in the aggregate own (each or upon exercise of all Warrants then outstanding would own) 30% of the Warrant Shares to register the sale of all or part of such request shall be referred Warrant Shares, the Company shall, at the Company's sole expense (other than the underwriting discounts, if any, payable in respect of the Warrant Shares sold by any Eligible Holder) within 60 days of the receipt of such request, prepare and file with the Commission a registration statement registering the Warrant Shares and will use all reasonable efforts through its officers, directors, auditors and counsel to herein (a) cause such registration statement to become effective as a “Demand Registration”promptly as practicable and (b) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”)if requested, holding keep such registration statement effective for at least thirty percent 24 months, provided that -------- the Company shall not be required to register the sale of Warrant Shares in an amount that is less than 1% (30%on a fully diluted basis) of the Registrable Securities then outstandingCompany's outstanding Common Stock. Within three Business Days after receiving any request contemplated by this Section 6.02, the Company shall give written notice to all other Eligible Holders, advising each of them that the Company effect the is proceeding with such registration under the Securities Act (i) for the first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate and offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, to include therein all or any portion of any such other Eligible Holder's Warrant Shares, provided that the Requesting Shareholder’s Registrable Securities and, in each case, specifying the intended method of disposition thereof, then the -------- Company shall as promptly as practicable following the date of receipt by the Company of receives a written request to do so from such request give notice of such Demand Registration at least fifteen (10) Eligible Holder within 30 days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities Act, and (ii) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness him or it of the registration statementCompany's notice. If, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested connection with any underwritten registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register initiated pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that6.02, the Company shall not be obligated to effect underwriter of such registration advises the Eligible Holders that marketing factors require a Demand Registration unless the aggregate proceeds expected to be received from the sale limitation of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registrationunderwritten, the Requesting Shareholder may revoke such request, without liability, no Warrant Shares requested by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends 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 pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested Eligible Holder to be included in such registration (including any shall be excluded from the underwriting unless all securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effectiveWarrant Shares are first excluded.
Appears in 1 contract
Demand Registration. (a) If at At any time following completion 180 days after the date of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act this Agreement and (i) for the period terminating on the first Public Offering anniversary of the Company after date of this Agreement, the completion Holders holding at least 5% of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts Common Stock which is Registrable Stock and commissions, would exceed $10,000,000), or (ii) after the completion thereafter Holders holding at least 2% of the Follow-On Offering, all outstanding Common Stock which is Registrable Stock (or any portion Holders holding less than 2% of the Requesting Shareholder’s outstanding Common Stock which is Registrable Securities andStock who, in each caseusing their reasonable efforts, specifying during the intended method of disposition thereof, then the Company shall as promptly as practicable six month period following the date of receipt notice by them to the Company of such request give notice their desire to register shares of such Demand Registration at least fifteen Stock held by them, have been unable to increase such shares to be registered to 2%, in the aggregate) (10the "Requesting Holders") days after receipt of such Demand Registration may request, in a written notice to the other ShareholdersCompany, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after that the date the Demand Registration is given by the Requesting Shareholder, Company file a registration statement under the Securities ActAct covering the registration of such percentage of shares (at least 5%, 2% or less, as the case may be) of the Common Stock which is Registrable Stock then outstanding in the manner (e.g, underwritten) specified in such notice (a "Demand Notice"); provided, however, that shares of Registrable Stock referred to in clause (iii) of the definition thereof, together with shares issued with respect thereto pursuant to clauses (iv) and (v) of the definition thereof, shall not be counted for purposes of determining if a Holder has satisfied the applicable threshold for making a Demand Notice. A registration effected pursuant to this Section 2 is referred to herein as a "Demand Registration". Following receipt of any Demand Notice under this Section 2, the Company shall (i) give, within 10 business days of receipt of such Demand Notice, each other Holder written notice that it will be filing a registration statement and advise such Holders that they may participate in such registration by promptly so notifying the Company and (ii) use its commercially reasonable efforts to effect, file as expeditiously promptly as possible, and practicable (but in any event within one hundred twenty 60 days after receiving such Demand Notice) a registration statement and use its best efforts to cause to be declared effective as soon as reasonably practicable (120but in any event within 120 days of receiving such Demand Notice) a registration statement providing for the offer and sale of the Registrable Stock that the Requesting Holders and the other Holders have requested be registered in accordance with the manner of disposition specified in the Demand Notice of the Requesting Holders; provided, however, that the participation of a Holder (other than a Requesting Holder) in a Demand Registration pursuant to clause (i) of this sentence shall not be deemed to be a Demand Registration of such participating Holder.
(b) If the Requesting Holders intend to have the Registrable Stock distributed by means of an underwritten offering, the underwriter or underwriters shall be selected by Requesting Holders holding a majority of the shares of Registrable Stock to be sold by such Requesting Holders after consultation with all Requesting Holders, subject to approval by the Company, which approval shall not be unreasonably withheld.
(c) Notwithstanding any provision of this Agreement to the contrary,
(i) the Company shall not be required to effect a Demand Registration if the Demand Notice related thereto is delivered during the period commencing 45 days prior to the estimated date of filing by the Company of a registration statement pertaining to a public offering of equity securities of the Company (a "Company Registration Statement") which are the same as or similar to, or convertible into or exchangeable for, Common Stock of the Company (other than a registration statement on Form S-8 or successor form) and ending on the date of the effectiveness of such Company Registration Statement; provided, however, that in no event shall the Company be required to
file a registration statement pertaining to a Demand Registration at any time prior to 90 days after the date the Demand Registration is given by the Requesting Shareholder, of the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, andany Company Registration Statement;
(ii) subject the Company shall not be required to effect more than one Demand Registration in any six-month period; and
(iii) if the Company shall furnish to the restrictions set forth in Sections 2.01(e), all other Registrable Securities Requesting Holders a certificate signed by the chief executive officer of the same class as those requested to be registered by Company stating that in the Requesting Shareholder that any other Shareholders (all good faith opinion of a majority of the board of directors of the Company such Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested registration would require the Company to register pursuant to this Section 2.01disclose a material financing, by request received by acquisition or other corporate development and that such disclosure at such time is not in the best interests of the Company within seven Business Days after and its stockholders, then the Company may postpone the filing or effectiveness of a registration statement for such Shareholders receive period (the Company’s notice "Delay Period") as the board of directors shall approve; provided, however, that (i) no single Delay Period may exceed 90 consecutive days; (ii) the Delay Periods in any twelve consecutive months may not exceed, in the aggregate, 180 days; and (iii) no Delay Period may commence fewer than 60 days following the end of a prior Delay Period.
(d) Each Original Stockholder will be entitled to two Demand Registration, all Registrations with respect to the extent necessary to permit the disposition (Registrable Stock held by such Original Stockholder; upon transfer or assignment of any or all of such Registrable Stock in accordance with Section 9 hereof, the intended methods thereof Original Stockholder shall notify the Company, in accordance with Section 9, as aforesaid) of to whether or not the Registrable Securities so to be registered, provided thatOriginal Stockholder is assigning Demand Registration rights under this Agreement. As a result, the Company shall not be obligated to effect a more than two Demand Registration unless the aggregate proceeds expected to be received from the sale Registrations in respect of the Registrable Securities requested to be included in such Stock of each Original Stockholder (including for this purpose any Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to rights in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) respect of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses Registrable Stock which have been assigned in connection accordance with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence provisions of Section 2.01(b9 hereof).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder); provided, provided however, that a Demand Registration shall not be deemed to have occurred if, after been effected for a particular Holder for purposes of this Section 2(d) unless (i) the Registration Statement filed in connection with such Demand Registration shall have been declared effective by the Commission; (ii) such Registration Statement shall have remained effective for the period set forth in Section 4; and (iii) the offering of Registrable Stock pursuant to such registration statement becomes effective, such registration statement is interfered with by shall not be subject to any stop order, injunction or other order or requirement of the SEC Commission that is not lifted or released (other than any such stop order, injunction or other governmental agency requirement of the Commission prompted by any act or courtomission of a Requesting Holder).
(e) If the Requesting Shareholder intends 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 Stock registered pursuant to section 2.01a Demand Registration is to be sold in one or more firm commitment underwritten offerings, and the Company shall include sole or managing underwriter, as the case may be, of such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter offering advises the Company and the Requesting Shareholder Holders of such securities that, in its viewopinion, the number of shares total amount of Registrable Securities Stock requested to be included in such registration will exceed the maximum amount (including any the "Maximum Demand Offering Size") of the Company's securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold marketed (1) at a price reasonably related to the then current market value of such securities or (2) without having an adverse effect on such otherwise materially and adversely affecting the entire offering, including the price at which such shares can be sold (the “Maximum Offering Size”), then the Company shall include in such registration, in the following priority listed below, up to the Maximum Demand Offering Size:
: (ix) first, all of the Registrable Securities Stock requested to be included in such registration by all Registering Shareholders (the Requesting Holders pursuant to this Section 2, allocated, if necessary necessary, for the such offering not to exceed the Maximum Demand Offering Size, pro rata among such Shareholders the Requesting Holders on the basis of the relative number of shares of Registrable Securities held by Stock each such Shareholder, or Requesting Holder has requested to be included in such other proportion as shall mutually be agreed to by all such Registering Shareholders)registration; and
and (iiy) second, any securities proposed all of the Registrable Stock requested to be registered included in such registration by Holders other than the Company (including for the benefit of any other Persons not party Requesting Holders pursuant to this Agreement)Section 2, allocated, if necessary, for such offering not to exceed the Maximum Demand Offering Size, pro rata among such non-Requesting Holders on the basis of the relative number of shares of Registrable Stock each such Holder has requested to be included in such registration.
(f) The Company may postpone effecting a registration pursuant agrees not to this Section 2.01 on two occasions during effect any period public or private sale, distribution or purchase of twelve consecutive months for a reasonable time specified in any of its equity securities which are the notice but not exceeding 90 days in the aggregate in any period same as or similar to, or convertible into or exchangeable or exercisable for, Common Stock of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 during the 30-day period that is thirty (30) days before the Company’s good faith estimate of the date of filing ofprior to, and ending on a date that is ninety (the 90) days after -day period beginning on, the effective date of, of any registration statement filed pursuant to a Company-initiated registration Demand Registration. The foregoing sentence shall not apply to: (other than x) any such equity securities registered pursuant to a registration statement on Form S-8 S-4 (or any successor form) in respect of a business combination, acquisition or similar forms), provided that transaction; (y) any shares of Common Stock issued by the Company is actively employing in good faith commercially reasonable efforts upon the exercise of an option or the conversion of a security outstanding on the filing date of any registration statement; and (z) any shares of Common Stock issued or options to cause such registration statement purchase Common Stock granted pursuant to become effectiveemployee benefit plans of the Company, including, without limitation, the Company's [Equity Incentive Plan].
Appears in 1 contract
Sources: Registration Rights Agreement (Galileo International Inc)
Demand Registration. (a) If Upon written notice provided at any time following completion of after the Initial Public Offering, subject to the terms Offering Date from any Holder or Holders of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)), the Company shall receive a request (each such request shall be referred to herein as a “Demand Registration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, requesting that the Company inSilicon effect the registration under the Securities Act (i) for the first Public Offering of any or all of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”Registrable Securities held by such Holder(s), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying which notice shall specify the intended method or methods of disposition thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration Registrable Securities, inSilicon shall use its best efforts to effect the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is given by the Requesting Shareholder, file a registration statement under the Securities ActAct and applicable state securities laws of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including in a Rule 415 Offering, and if inSilicon is then eligible to register such Registrable Securities on Form S-3 (iior a successor form) use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case coveringfor such offering); PROVIDED that:
(i) subject to the restrictions set forth in Sections 2.01(e), all Holder(s) of Registrable Securities for which the Requesting Shareholder has requested registration under must request a minimum of $25,000,000 of shares in any request made pursuant to this Section 2.01, and2.1.
(ii) subject with respect to the restrictions set forth in Sections 2.01(e)any registration statement filed, all other Registrable Securities of the same class as those requested or to be registered by the Requesting Shareholder that any other Shareholders (all such Shareholdersfiled, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.012.1, by if inSilicon shall furnish to the Holders of Registrable Securities that have made such request received a certified resolution of the Board of Directors of inSilicon stating that in the Board of Directors' good faith judgment it would (because of the existence of any acquisition or any other event or condition of similar significance to inSilicon) be materially disadvantageous (a "Disadvantageous Condition") to inSilicon for such a registration statement to be filed and become effective, and setting forth the general reasons for such judgment, inSilicon shall be entitled not to file any such registration statement, until such Disadvantageous Condition no longer exists (notice of which inSilicon shall promptly deliver to such Holders); PROVIDED, that the filing of any such registration statement may not be delayed for a period in excess of ninety (90) days due to the occurrence of any particular Disadvantageous Condition and no more than one (1) resolution regarding Disadvantageous Conditions may be made by the Company within seven Business Days Board of Directors in any twelve (12) month period;
(iii) after such Shareholders receive any Phoenix Ownership Reduction, the Company’s notice of the Demand RegistrationHolders may exercise its rights under this Section 2.1 on not more than four (4) occasions (it being acknowledged that prior to any Phoenix Ownership Reduction, all there shall be no limit to the extent necessary to permit number of occasions on which the disposition Holders may exercise such rights); and
(in accordance with iv) after any Phoenix Ownership Reduction, the intended methods thereof as aforesaid) Holders of the Registrable Securities so to be registered, provided that, the Company shall not be obligated entitled to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations registrations pursuant to this Section 2.012.1 during any twelve- (12-) month period.
(b) Promptly after Notwithstanding any other provision of this Agreement to the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii)contrary, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares a registration requested by a Holder of Registrable Securities requested pursuant to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company revoking such request. Notwithstanding clause (d) below, a request, so revoked, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request) or (ii) the Requesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of this Section 2.01(b).
(d) A Demand Registration 2.1 shall not be deemed to have occurred unless the registration statement relating thereto been effected (and, therefore, not requested for purposes of paragraph (a) above), (i) unless it has become effective, (ii) if after it has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court.
(e) If the Requesting Shareholder intends to distribute the Registrable Securities covered court for any reason other than a misrepresentation or an omission by their request by means of an underwritingsuch Holder and, they shall so advise the Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its viewresult thereof, the number of shares of Registrable Securities requested to be included registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement or (iii) 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 act or omission by such Holder of Registrable Securities.
(including c) In the event that any securities that registration pursuant to this Section 2.1 shall involve, in whole or in part, an underwritten offering, the Company proposes Holders of a majority of the Registrable Securities to be included registered shall have the right to designate an underwriter or underwriters reasonably acceptable to inSilicon as the lead or managing underwriters of such underwritten offering and, in connection with each registration pursuant to this Section 2.1, such Holders may select one counsel reasonably acceptable to inSilicon to represent all such Holders.
(d) inSilicon shall have the right to cause the registration of additional equity securities for sale for its account in any registration of Registrable Securities requested by the Holders pursuant to paragraph (a) above; PROVIDED that are not Registrable Securities) exceeds without the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registrationHolder's consent, in the priority listed belowfirst registration effected pursuant to this Agreement (whether under this Section 2.1 or under Section 2.2), inSilicon shall only be entitled to include equity securities equal to up to forty percent (40%) of the Maximum Offering Size:
aggregate of the equity securities registered (iup to fifty percent (50%) firstif the equity securities registered have a maximum aggregate offering price of $50 million or less) and in all subsequent registrations effected pursuant to this Agreement (whether under this Section 2.1 or under Section 2.2), all inSilicon shall only be entitled to include equity securities equal to up to fifty percent (50%) of the aggregate equity securities registered. The Holders of the Registrable Securities to be offered may require that any such additional equity securities be included in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein. In the event that a nationally recognized investment banking or commercial banking firm selected by such Holders reasonably acceptable to inSilicon (which shall be the lead underwriter or a managing underwriter in the case of an underwritten offering) advises inSilicon and the Holders in writing that the number of equity securities requested to be included in a registration statement by the Holders of Registrable Securities and inSilicon exceeds the number which, in the good faith view of such registration by all Registering Shareholders (allocatedinvestment banking firm, if necessary for can be sold without adversely affecting the offering not price, timing, distribution or sale of securities in the offering, the number shall be allocated between inSilicon and the Holders in accordance with the percentages set forth above in this Section 2.1(d) and the number allocated to exceed the Maximum Offering Size, pro rata Holders shall be reallocated among such Shareholders the requesting Holders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed has requested to be registered by the Company (including for the benefit of any other Persons not party to this Agreement)registered.
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) effecting the registration would require the premature disclosure of material information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.01 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 (other than a registration on Form S-8 or any successor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract