Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i). (ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i). (iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration. 2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2. 2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall: (i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering. (ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement. 2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated. 2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2. 2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company. 2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 4 contracts
Sources: Registration Rights Agreement (Gleacher & Company, Inc.), Investment Agreement (Gleacher & Company, Inc.), Investment Agreement (First Albany Companies Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of Subject to the Registrable Securities then outstanding (the “Demanding Holders”) shall provisions hereof, at any time make a written request to on or after the Companydate that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(ian Underwritten Offering (as defined below).
, and (iiiii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise containing all information about such Holder required to be prepared included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and filed pursuant (y) use reasonable best efforts to this Section 2.1effect such registration (including, if without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Board determines, in its good faith reasonable judgment (with the concurrence Securities Act and any other governmental requirements or regulations) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationhas been so requested to register; provided, however, that (i) the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or a Shelf Registrationdelayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company shall:
(ito and for the benefit of the underwriter(s) File shall also be made to and for the registration statement with benefit of the Commission as promptly as practicableHolders proposing to distribute their securities through the Underwritten Offering, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the Company’s best efforts liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to keep losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the relevant registration statement Continuously Effective Company by or on behalf of such Holder expressly for inclusion therein and (xb) if a Demand Registrationshall not in any event, for up absent fraud or intentional misrepresentation, exceed an amount equal to two hundred seventy the net proceeds to such Holder (270after deduction of all underwriters’ discounts and commissions) days or until such earlier date as from the disposition of which all the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days terms of such suspension or postponement.
2.4underwriting agreement. The Company shall not be obligated to effect no or participate (a) more than three Demand Registrations two (2) Underwritten Offerings in any twelve (12) month period, and such (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of Shelf Registrations as may securities proposed to be necessary included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to provide each be included in such Underwritten Offering and every Substantial Holder with (ii) the right Company will be obligated and required to request one Shelf Registration. For purposes include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the preceding sentence, number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration shall will not be deemed to have been effected (i) as a Demand Registration unless a the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or administrative agency, or if any court for any reason not attributable prevents or otherwise limits the sale of the Registrable Securities pursuant to the Selling Holders registration, 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 each case less 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and or (ii) if if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 4.2 is deemed not to have been effected as a Demand Registration or (ii) the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request registration requested pursuant to this Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to 4.2 does not remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than continuously effective until forty-five (545) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration commencement of the offer and sale distribution by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to Holders of the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 4.2 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), shall decide which class each Holder of Registrable Securities shall be included therein in permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such offering and the related registrationDemand Registration, and the other class provided that such registration nonetheless shall be excluded; and count as a Demand Registration for purposes of clause (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersproviso to Section 4.2(a).
Appears in 4 contracts
Sources: Stockholders Agreement (Parkway, Inc.), Stockholders Agreement (Parkway, Inc.), Voting Agreement (Cousins Properties Inc)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) If one as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or more Holders (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that own an aggregate of 51% or more of on the Registrable Securities then outstanding date a Demand (the as hereinafter defined) is made constitute Demand Stockholders (a “Demanding HoldersRequesting Stockholder”) shall at any time be entitled to make a written request to the Company, of the Company shall cause there to be filed with the Commission (a “Demand”) for registration statement meeting the requirements of under the Securities Act of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”)) and thereupon the Company will, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number the terms of such Demanding Holder’s Registered Sharesthis Agreement, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 use its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) best efforts to effect the registration of any Registrable Shares, the Company shall as promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 as practicable under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallof:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under which the Demand Registration statement shall have Company has been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant so requested to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended register by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court Requesting Stockholders 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the request Company has been requested to register pursuant to Section 2.1(i6.1(b); and
(iii) or all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 2.26.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, respectively. The Company agrees to file all reports required if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may beSEC, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). Whenever In addition, the Company shall effect be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration pursuant statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to this such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 2 6.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: a Demand Registration, any managing underwriter (i) or, if such Selling Holders have requested Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the inclusion therein of more than one class of Registrable SecuritiesCompany, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing writing, that, in its opinion, the inclusion of more than one class all of the securities, including securities of the Company that are not Registrable Securities Securities, sought to be registered in connection with such Demand Registration would adversely affect such offering, the Demanding Holders holding at least a majority marketability of the Registrable Securities proposed sought to be sold therein pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by themsuch underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, shall decide which class up to the number of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether Demand Registration by Selling Holders or others) exceeds the amount which Stockholders, which, in the opinion of the underwriter can be sold in without adversely affecting the marketability of the offering, pro rata among such offering within a price range acceptable to Stockholders requesting such Demand Registration on the Majority Selling Holdersbasis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities shall the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such offering and registration statement, pro rata on the related registration, to the extent basis of the amount which can number of such other securities requested to be sold within included or such price rangeother method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and on thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a pro rata basis among number of Registrable Securities included in such Demand Registration constituting a plurality of all Selling HoldersRegistrable Securities included in such Demand Registration.
Appears in 4 contracts
Sources: Stockholders Agreement (Moelis & Co), Shareholder Agreement (Moelis & Co), Stockholders Agreement (Moelis & Co)
Demand Registration. (ia) If one or more Except as provided in Section 2.2(b) below, upon the written request of the Holders that own an aggregate of 51% or more owning not less than ten percent (10%) of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, that the Company shall cause there effect pursuant to be filed with this Agreement the Commission a registration statement meeting of the requirements resale of the Registrable Securities under the Securities Act (a “Demand Registration”which request shall specify the Registrable Securities so requested to be registered by each such Holder, the Proposed Amounts thereof and the intended method of disposition by such Holders), the Company will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of the resale of the Proposed Amount of Registrable Securities, for disposition in accordance with the intended method of disposition stated in such request; provided, however that (i) if in the good faith judgment of the Board of Directors of the Company, such registration would be detrimental to the Company and each Demanding Holder the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by an executive officer of the Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such registration would be detrimental, provided that the Company may not defer the filing for a period of more than 120 days after receipt of the request of such Holders. The Company shall be entitled to have included therein include in any registration statement filed pursuant to this Section 2.2: (subject A) securities of the Company held by any other security holder of the Company, and (B) in an underwritten public offering, securities of the Company to Section 2.7be sold by the Company for its own account, except as and to the extent that (x) all in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Registrable Securities to be sold by such Holders or such number (y) in the reasonable opinion of such Demanding Holder’s Registered SharesHolders owning a majority of the Proposed Amount of Registrable Securities (if such method of disposition is not an underwritten public offering), as such inclusion would adversely affect the Demanding Holder shall report in writingprice at which such Registrable Securities may be sold pursuant to the plan of distribution; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of if, after such request a Demand Registration Statement pursuant to this Section 2.1 shall have registration statement has been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registeredfiled, the intended methods of disposition thereof and managing underwriter believes that the request is for a Demand Registration pursuant inclusion of all securities requested to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after proposed underwritten public offering would adversely affect the date marketing of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registrationdistribution that is not an underwritten public offering, postponed as permitted if such Holders owning a majority of the Proposed Amount of Registrable Securities reasonably believe that the inclusion of all securities requested to be included in such registration statement would adversely affect the price at which the Registrable Securities may be sold pursuant to the plan of distribution, then the aggregate amount of securities to be offered by Section 2.1(ii), the foregoing period Company and such other security holders of the Company shall be extended reduced so as to permit the offering of all Registrable Securities requested by all the aggregate number Holders of days the entire Proposed Amount of Registrable Securities without such suspension or postponementadverse effects.
2.4. (b) The Company shall not be obligated to take any action to effect no more than three Demand Registrations any registration requested by the Holders pursuant to Section 2.2(a) hereof (i) after the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (ii) for a period of two (2) years after the Company has effected one such registration pursuant to Section 2.2(a) hereof and such number of Shelf Registrations as may be necessary registration has been declared or ordered effective, such two year period to provide each and every Substantial Holder with commence on the right to request one Shelf Registration. For purposes date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the preceding sentenceexpiration date of the Warrants.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto has become effectiveby reason of the refusal of Holders owning a majority of the Proposed Amount to proceed shall be deemed to have been effected by the Company unless the Holders shall have elected to pay all Company Registration Expenses in connection with such registration, (ii) if after it has become effective such registration statement has become effective, such registration 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 Commission SEC or other governmental agency or court for any reason not attributable to other than a misrepresentation or an omission by the Selling Holders and such interference is not thereafter eliminatedHolders, or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order some wrongful act or similar orderomission, or proceedings for such an orderact or omission in bad faith, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 3 contracts
Sources: Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (ia) If one Subject to the limitations contained in Section 2(b), at any time after the date that is three months after the Closing Date (the “Rights Effective Date”), Primary Holders may request by written notice delivered to the Company (a “Demand Notice”) that the Company register under the Securities Act all or more Holders that own an aggregate of 51% or more any portion of the Registrable Securities then outstanding held by such Primary Holders, for sale in the manner specified in such notice (including, but not limited to, an underwritten public offering) (a “Demand Registration”). In each such case, the “Demanding Demand Notice shall specify the number of Registrable Securities for which registration is requested and the proposed manner of disposition of such securities.
(b) The Company shall use its best efforts to file with the SEC within thirty (30) days after the Company’s receipt of a Demand Notice a registration statement for the public offering and sale, in accordance with the method of disposition specified by Primary Holders”, of the number of Registrable Securities specified in such notice, and thereafter use its commercially reasonable efforts to cause such registration statement to become effective within sixty (60) shall at any time make a written request days after its filing. Such registration statement may be on Form S-3 or another appropriate form that the Company is eligible to use and that is reasonably acceptable to the Companymanaging underwriter, if any; provided that if the Company is a WKSI, an automatic shelf registration on Form S-3 will, at the request of Primary Holders, cover an unspecified number of shares of Common Stock to be sold by the Company and Holders and the Company shall file such a shelf registration statement within fifteen (15) days after receipt of a request by the Primary Holders therefor; provided further that if requested at least fifteen (15) days prior to the Rights Effective Date, the Company shall cause there file such a shelf registration statement on the Rights Effective Date.
(c) The Company shall not have any obligation hereunder to register any Registrable Securities under Section 2(a)(ii) unless it shall have received a request from Primary Holders to register at least ten percent (10%) of the aggregate amount of Registrable Securities held by all of the Primary Holders as of the date of such request.
(d) If the Company is required to use its best efforts to register Registrable Securities in a registration initiated upon the demand of Primary Holders pursuant to Section 2(a)(ii) of this Agreement and the Approved Underwriters, if any, for such offering advise that the inclusion of all securities sought to be filed registered pursuant to Section 2 hereof may interfere with an orderly sale and distribution of or may materially adversely affect the Commission price of such offering, then the Company will include in such offering, first, the aggregate number of Registrable Securities that are participating in such offering pursuant to Sections 2(a)(ii) or 3(a), allocated pro rata among the Registrable Securities based on the number of shares of Common Stock beneficially owned by each such Holder on the date that the Demand Notice is received by the Company which the Approved Underwriters, if any, advise will not likely have such effect, and second, all other securities requested or proposed to be included in such registration (including shares of Common Stock to be sold for the account of the Company).
(e) Upon the demand of Primary Holders pursuant to Section 2(a)(ii) made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” of shares of Common Stock off of an effective shelf registration statement meeting the requirements on Form S-3 pursuant to Rule 415 of the Securities Act (a “Demand RegistrationShelf Takedown”), and each Demanding Holder shall be entitled to have included therein (including, subject to the limitations set forth in Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any2(b), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “underwritten Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three yearsTakedown. Notwithstanding the foregoing, if such Primary Holders may not demand a Shelf Takedown for any reason an offering that will result in the effectiveness imposition of a registration pursuant lockup on the Company and the Primary Holders unless the shares requested to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended sold by the Primary Holders in such takedown have an aggregate number market value (based on the most recent closing price of days the Common Stock at the time of such suspension or postponementthe demand) of at least $10 million.
2.4. The Company shall be obligated to effect no more than three (f) If any Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution Registration of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the 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 form 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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 public offering, the Majority Selling Holders, Primary Holders shall select and obtain one or the Initiating Substantial Holder, more investment banking firms of national or regional reputation to act as the case may be, shall have the right to select the managing underwriter or underwriters and manager or managers to administer such underwritten offering or of the placement agent or agents for such agented offering; provided, however, that each Person so selected shall such firm or firms shall, in any case, also be reasonably acceptable to approved by the Company.
2.7, such approval not to be unreasonably withheld, delayed or conditioned. Whenever the Company shall effect a registration An investment banking firm or firms selected pursuant to this Section 2 2(a)(vi) shall be referred to as the “Approved Underwriter” herein.
(g) Upon the demand of Holders, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement on Form S-3 in order to register up to the number of shares previously taken down off of such shelf by such Holders and not yet “reloaded” onto such shelf registration statement. The Holders and the Company will consult and coordinate with each other in order to accomplish such replenishments from time to time in a sensible manner.
2.2 The obligations of the Company to effect, or to take any action to effect, a Demand Registration or an underwritten Shelf Takedown shall be limited as follows:
(a) In connection with an underwritten offering by one or more Selling the provisions of this Section 2, the Primary Holders of Registrable Securities: (i) if such Selling Holders have requested may require the inclusion therein of Company to effect no more than one class three (3) Demand Registrations or underwritten Shelf Takedowns in the aggregate in any 365 day period during the six (6) year period commencing on the Rights Effective Date. After the expiration of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinionperiod, the inclusion of more than one class of Registrable Securities would adversely affect such offering, Company shall no longer have any obligation to file Demand Registrations at the Demanding Holders holding at least a majority request of the Registrable Securities proposed to be sold therein by themPrimary Holders.
(b) For the avoidance of doubt, shall decide which class until the six (6) year anniversary of Registrable Securities the Rights Effective Date, there shall be included therein in no limit on the number of non-underwritten Shelf Takedowns that Primary Holders may request (but after such offering and date, Primary Holders shall no longer have the related registrationright to make any such requests), and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registrationand, to the extent that Registrable Securities are not covered by an effective shelf registration on Form S-3, the Primary Holders shall be entitled to demand that the Company effect such a shelf-registration, notwithstanding the limits set forth in this Section 2(b) and no such demand for a shelf registration statement shall count against the limits set forth in this Section 2(b).
2.3 Notwithstanding any other provision of this Agreement, the Company shall have the right to defer or suspend the filing or effectiveness of a registration statement relating to any registration requested under Section 2(a) for a reasonable period of time not to exceed 90 days if a prior registration statement of the amount which can be sold within such price rangeCompany for an underwritten, and on a pro rata basis among all Selling Holderspublic offering by the Company of its securities was declared effective by the SEC less than 120 days prior to the anticipated effective date of the requested registration.
2.4 No registration of Registrable Securities under this Section 2 shall relieve the Company of its obligation (if any) to effect registrations of Registrable Securities pursuant to Section 3.
Appears in 3 contracts
Sources: Registration Rights Agreement (Lightyear Fund Ii Lp), Merger Agreement (Vantagesouth Bancshares, Inc.), Merger Agreement (YADKIN FINANCIAL Corp)
Demand Registration. (i) If one The Company may include in a Demand Registration Registrable Securities for the account of the Demanding Holders and shares of Common Stock for the account of the Company or more Holders that own an aggregate of 51% other shareholders exercising contractual piggy-back registration rights or more of other shareholders, on the same terms and conditions as the Registrable Securities then outstanding (are included therein for the “account of the Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand Registration, upon the earlier managing underwriter(s) of (x) any underwritten offering that is the date as subject 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by informed the Company with in writing that in their opinion the Commission in a timely manner so as to remain eligible or become eligible, as total number of securities that the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the InvestorsDemanding Holders, the Company shall file a Registration Statement on Form S-3 with respect and any other shareholders intend to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which number that can be sold in such offering within a price range acceptable to the Majority Selling Holders of a majority of the Registrable Securities requested to be included therein, then (x) the number of Registrable Securities to be offered for the account of any stockholders, other than the Demanding Holders, securities shall be reduced (to zero, if necessary) pro rata in proportion to the respective number of Registrable Securities requested to be registered by such shareholders; and (y) thereafter, if necessary, the number of Registrable Securities to be offered for the account of the Company shall be reduced (to zero, if necessary), to the extent necessary to reduce the total number of Registrable Securities requested to be included in such offering to the number of Registrable Securities, if any, recommended by such managing underwriter(s) (and if the number of Registrable Securities to be offered for the account of shareholders other than the Demanding Holders and for the account of the Company has been reduced to zero, and the related registrationnumber of Registrable Securities requested to be included in such offering by the Demanding Holders exceeds the number of Registrable Securities recommended by such managing underwriter(s), then the number of Registrable Securities to be offered for the account of the Demanding Holders shall be reduced pro rata in proportion to the extent respective number of Registrable Securities requested to be registered by the Demanding Holders); and (ii) if the offering that is the subject of such Demand Registration is not underwritten, only Demanding Holders, and no other party (including the Company), shall be permitted to include Registrable Securities in such Demand Registration unless the Demanding Holders owning a majority of the amount which can be sold within Registrable Securities included in such price range, and on a pro rata basis among all Selling HoldersDemand Registration consent in writing to the inclusion of such Registrable Securities therein.
Appears in 3 contracts
Sources: Registration Rights Agreement (Thomas Group Inc), Revolving Credit Loan Agreement (Thomas Group Inc), Registration Rights Agreement (Thomas Group Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of Subject to the Registrable Securities then outstanding (the “Demanding Holders”) shall provisions hereof, at any time make a written request to on or after the Companydate that is 180 days after the Closing Date, the Holders of a majority of Registrable Securities shall have the right to require the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(ian Underwritten Offering (as defined below).
, and (iiiii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise containing all information about such Holder required to be prepared included in such Registration Statement in accordance with applicable Law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and filed pursuant (y) use reasonable best efforts to this Section 2.1effect such registration (including, if without limitation, appropriate qualification under applicable blue sky or other state securities Laws and appropriate compliance with applicable regulations issued under the Board determines, in its good faith reasonable judgment (with the concurrence Securities Act and any other governmental requirements or regulations) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationhas been so requested to register; provided, however, that (i) the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registrationunder this Section 3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company shall:to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 3.9 of this Agreement; provided, that
(i) File the registration statement with the Commission as promptly as practicablerepresentations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall use also be made to and for the Company’s best efforts benefit of the Holders proposing to have distribute their securities through the registration declared effective under the Securities Act as soon as reasonably practicableUnderwritten Offering, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the Company’s best efforts liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to keep losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the relevant registration statement Continuously Effective Company by or on behalf of such Holder expressly for inclusion therein and (xb) if a Demand Registrationshall not in any event, for up absent fraud or intentional misrepresentation, exceed an amount equal to two hundred seventy the net proceeds to such Holder (270after deduction of all underwriters’ discounts and commissions) days or until such earlier date as from the disposition of which all the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days terms of such suspension or postponement.
2.4underwriting agreement. The Company shall not be obligated to effect no or participate (a) more than three Demand Registrations two (2) Underwritten Offerings in any twelve (12) month period, and such (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of Shelf Registrations as may securities proposed to be necessary included in such registration exceeds the Underwriters’ maximum number, then (i) the Company shall so advise all Holders of Registrable Securities to provide each be included in such Underwritten Offering and every Substantial Holder with (ii) the right Company will be obligated and required to request one Shelf Registration. For purposes include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ maximum number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the preceding sentence, number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration shall will not be deemed to have been effected (i) as a Demand Registration unless a the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or administrative agency, or if any court for any reason not attributable prevents or otherwise limits the sale of the Registrable Securities pursuant to the Selling Holders registration, 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 each case less 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and or (ii) if if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 3.2(a). If (i) a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 3.2 is deemed not to have been effected as a Demand Registration or (ii) the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request registration requested pursuant to this Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to 3.2 does not remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than continuously effective until forty-five (545) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration commencement of the offer and sale distribution by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to Holders of the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 3.2 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 3.2(d), shall decide which class each Holder of Registrable Securities shall be included therein in permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such offering and the related registrationDemand Registration, and the other class provided that such registration nonetheless shall be excluded; and count as a Demand Registration for purposes of clause (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersproviso to Section 3.2(a).
Appears in 3 contracts
Sources: Voting Agreement (Cousins Properties Inc), Stockholders Agreement (Cousins Properties Inc), Voting Agreement (Parkway Properties Inc)
Demand Registration. (i) If one or more From and after six months after the Closing Date, the Holders that own an aggregate of 51at least 55% or more of the Registrable Securities then outstanding (the “Demanding Holders”excluding any Shelf Shares) shall at any time make a written request may notify Parent in writing that such Holders desire for Parent to the Company, the Company shall cause there up to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of notifying Holders' Registrable Securities to be registeredregistered for sale to the public under the Act. Upon receipt of such written request, Parent will promptly notify in writing all other Holders of Registrable Securities of such request, which Holders shall within twenty days following such notice from Parent notify Parent in writing whether such persons desire to have up to all of the intended methods Registrable Securities held by each of disposition thereof them included in such offering. Parent will, promptly following the expiration of such twenty day period, prepare and that file subject to the request is for a Demand Registration pursuant to provisions of this Section 2.1(i)10.02, and use its best efforts to prosecute to effectiveness, an appropriate filing with the SEC of a registration statement covering such Registrable Securities and the proposed sale or distribution thereof under the Act.
(ii) The Company shall be entitled to postpone for up to one hundred twenty thereto or (120B) days would materially adversely affect the filing business or prospects of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, Parent in its good faith reasonable judgment (with the concurrence view of the managing underwriterdisclosures that may be required thereby of information about the business, if any)assets, that such registration and the Transfer liabilities or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any operations of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationParent theretofore disclosed; provided, however, that the Company shall not have postponed filing of a registration statement, or any supplement or amendment thereto, by Parent may be deferred pursuant to this Section 2.1(ii10.02(c) for no longer than 180 days (but only once in every twelve month period) after the filing delivery of any other Demand Registration statement otherwise such demand notice.
(iii) Notwithstanding anything in this Section 10.02(c) to the contrary: (A) Parent shall not be required to be prepared and filed effect the registration of the Registrable Securities pursuant to this Section 2.1 during 10.02(c) more than one time; and (B) Parent shall not be required to effect any such registration unless at least $1 million of Registrable Securities are to be sold in such registration (with such amount being determined based on the 24 month period ended market price of the Parent Common Stock on the date of the relevant request pursuant to Section 2.1(iinitiating Holder(s) request).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to this Section 2 involves 10.02(c) is in the form of an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, Parent will select and obtain the Majority Selling Holders, investment banker or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters investment bankers and manager or managers that will administer the offering, which investment bankers must offer terms which are reasonably competitive in the marketplace for similar size companies and similar offerings. Parent shall (together with all Holders proposing to administer distribute Registrable Securities through such underwritten offering or underwriting) enter into an underwriting agreement, containing usual and customary terms, with the placement agent or agents managing underwriter selected for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7underwriting. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class If any holder of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to Parent and the managing underwriter. The Registrable Securities proposed to so withdrawn shall also be sold therein by themwithdrawn from registration.
(iv) If any registration statement under this Section 10.02(c) is not declared effective (except as a result of Holders withdrawing Registrable Securities), shall decide which class then the holders of Registrable Securities may request an additional registration under this Section 10.02(c).
(v) No registrations effected under this Section 10.02(c) shall be included therein in such offering and the related registrationrelieve Parent of its obligations to effect any registrations under, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable pursuant to the Majority Selling Holdersterms of, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 10.02(d).
Appears in 3 contracts
Sources: Merger Agreement (Smith Jack T), Merger Agreement (Palmer J N Family Partnership), Merger Agreement (Ladin William E Jr)
Demand Registration. (i) If At any time after the expiration of the Restricted Period, the Sellers Representative may, on one or more Holders that own an aggregate of 51% or more occasion only, request registration under the Securities Act of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writingheld by him; provided, however, that no such registration request shall be permitted to be made at any time when all Registrable Securities then held by and issuable to the Founders may be sold under Rule 144 during any ninety (90) day period and the certificates evidencing such Registrable Securities bear no legends restricting the transfer thereof or may be issued or re-issued without such legends (and, to the extent such securities are issued in global form, bear an unrestricted CUSIP number or may be issued or re-issued bearing an unrestricted CUSIP number); provided further, however, that no such registration request shall be permitted to be made in connection with an underwritten offering in which the Registrable Securities would be sold to an underwriter or underwriters for reoffering to the public; and provided further, however, that no such registration request shall be permitted to be made at any time after the Parent has effected one (1) registration pursuant to this Section 2.1 if within six 13.21. Within ten (610) months prior to the date days after receipt of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registeredregistration request, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company Parent shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed requested registration to all Holders. Any other holders of Registrable Securities for whom the Parent has current contact information and shall include in such Holder may, registration all such Registrable Securities with respect to which the Parent has received written requests for inclusion therein within twenty (20) days after the transmission of the Parent’s notice. Within sixty (60) days after the receipt of such noticea request, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after Parent shall prepare and file with the date of this Agreement each Substantial Holder that shall make a written request to the Company Securities and Exchange Commission (the “Initiating Substantial HolderSEC”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect (or, if Form S-3 is not then available to the Registrable Securities covered by the Registration Statement Parent, then on (i) Form S-1 or (ii) such other form filed pursuant of registration statement as is then available to Section 2(ieffect a registration for resale of the Registrable Securities) (the “Registration Statement”) and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant thereafter shall use its reasonable best efforts to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendmentto become effective. The Founders’ request(s) to be declared effective no later than ninety (90) days after for registration shall specify the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class approximate number of Registrable Securities would adversely affect such offeringrequested to be registered, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in anticipated per share price range for such offering and the related registrationintended method of distribution. As used in this Section 13.21, the term “Founders” shall mean and include only (i) each of the other class shall be excluded; and Founders that then holds Registrable Securities, (ii) if any bank or other institutional lender to any Founder to which such Founder collaterally assigns its rights under this Section 13.21 that (w) then holds Registrable Securities and (x) agrees to become bound by the Underwriters’ Representative or Agent advises each such Selling Holder provisions of this Agreement in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price rangeaccordance with Section 13.21(k), and on a pro rata basis among all Selling Holders(iii) any transferee or assignee thereof to which any such bank or other institutional lender assigns its rights under this Agreement and that (y) then holds Registrable Securities and (z) agrees to become bound by the provisions of this Agreement in accordance with Section 13.21(k).
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (Blyth Inc)
Demand Registration. (i) If one Subject to the conditions of this Section 2, if the Company shall receive a written request from the Purchasers of at least fifty percent (50%) of the Registrable Securities (the “Initiating Purchasers”) then outstanding (whether or more Holders not issued) that own an aggregate 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 jurisdiction of 51% or more Canada, covering the registration of at least twenty-five percent (25%) of the Registrable Securities then outstanding (or a lesser percent if the “Demanding Holders”anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $5,000,000), then the Company shall, promptly, and in any event within twenty (20) days of the receipt thereof, give written notice of such request to all Purchasers, and subject to the limitations of this Section 2, use its reasonable best efforts to effect, as expeditiously as practicable, the registration under the 1933 Act or the Applicable Canadian Securities Laws of all Registrable Securities that the Purchasers request to be registered. Such Registration Statement also shall cover, to the 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 Stock 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 at any time make a written request be provided in accordance with Section 3(c) to the Company, the Purchasers and their counsel prior to its filing. The Company shall cause there to be 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 2.7) all or such must effect an unlimited number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made registrations pursuant to this Section 2.1 if within six 2(a)(i), provided however, that the Company shall not be obligated to effect (6A) months prior to a registration covering the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number sale of Registrable Securities to be registeredfor an aggregate public offering price of less than $5,000,000, the intended methods of disposition thereof and that the request (B) more than two (2) such registrations in any 12-month period, or (C) any registration at a time when it is for a Demand Registration pursuant to this Section 2.1(i)keeping three (3) such registrations effective.
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of not identify any Demand Purchaser as an underwriter in any Registration statement otherwise required to be prepared and Statement or Prospectus filed pursuant to this Section 2.1, if Agreement without the Board determines, in its good faith reasonable judgment (with the concurrence prior written consent of the managing underwriter, if any), that such registration Purchaser and the Transfer or Prospectus shall contain (except if otherwise directed by any Purchaser whose Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be are included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.and
Appears in 3 contracts
Sources: Registration Rights Agreement (Glencore Holding Ag), Registration Rights Agreement (Polymet Mining Corp), Purchase Agreement (Polymet Mining Corp)
Demand Registration. (ia) If one at any time after the Lockup Date, the Company shall receive a written request from the Investor that the Company effect the registration under the Securities Act of all or more Holders that own an aggregate of 51% or more any portion of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a specified in such written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder specifying the information set forth under Section 6.4(i), then the Company shall be entitled use its commercially reasonable efforts to have included therein (effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 2.76.1(e), the registration under the Securities Act of the Registrable Securities for which the Investor has requested registration under this Section 6.1, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) all or such number of such Demanding Holder’s Registered Sharesthe Registrable Securities so to be registered, as the Demanding Holder shall report in writing; provided, however, that no request may the Company shall not be made pursuant required to this Section 2.1 if within effect (i) more than one such Demand Registration in any six month period and (6ii) months more than two (2) such Demand Registrations in total.
(b) At any time prior to the effective date of the registration statement relating to such registration, the Investor may revoke such Demand Registration request by providing a notice to the Company revoking such request, provided, that such Demand Registration shall count as having been effected for purposes of the proviso to Section 6.1(a) above unless the Investor pays all Registration Expenses in connection with such revoked Demand Registration within thirty (30) days of written request therefor by the Company.
(c) For any Public Offering relating to a Demand Registration, the Company shall select, with the consent of the Investor (not to be unreasonably withheld, delayed or conditioned), the lead underwriter and any additional underwriters in connection with the offering. In connection with any Public Offering, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take all other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering.
(d) If a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by involves an underwritten Public Offering and the Commission. Any request made pursuant to this Section 2.1 shall be addressed to managing underwriter(s) advises the attention of Company and the Secretary of the CompanyInvestor that, and shall specify in its view, the number of Registrable Securities requested to be registeredincluded in such registration by the Investor, the intended methods Company and for the account of disposition thereof and any other Persons exceeds the largest number of Registrable Securities that can be sold without having a material adverse effect on such offering, including the request is for a price at which such Registrable Securities 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 registered in the Demand Registration by the Investor; and
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(e) Upon notice to the Investor, the Company may postpone effecting a registration pursuant to this Section 2.1(i6.1 on up to two (2) occasions during any three hundred and sixty-five (365) consecutive day period for a reasonable time specified in the notice but not exceeding ninety (90) days in the aggregate (which period may not be extended or renewed), if (i) the Company shall determine in good faith, based on advice from independent investment bankers, that effecting the registration would materially and adversely affect an offering of securities of the Company, the preparation of which had then been commenced, or (ii) the Company is in possession of material non-public information, the disclosure of which during the period specified in such notice the Company believes in good faith would not be in the best interests of the Company. If the Company so postpones effecting a registration, the Investor will be entitled to withdraw its registration request and, if such request is withdrawn, such registration request will not count for purposes of the limitation set forth in the proviso to Section 6.1(a).
(iif) The Company Notwithstanding any provision in this Section 6.1 or elsewhere in this Agreement, no provision relating to the registration of Registrable Securities shall be entitled construed as permitting the Investor to postpone for up to one hundred twenty (120) days effect a Transfer of securities that is otherwise prohibited by the filing terms of this Agreement or any Demand Registration statement otherwise required to be prepared other agreement between the Investor and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i)Subsidiaries.
(iiig) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if no Demand Registration shall count as having been effected for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration proviso to Section 6.1(a) (and the Company shall not be deemed pay or reimburse all Registration Expenses pursuant to have been effected Section 6.5) if (i) unless a the registration statement relating to such request is not declared effective within one hundred and eighty (180) days of the date such registration statement is first filed with respect thereto has become the SEC and the Investor revokes such Demand Registration prior to such registration statement being declared effective, (ii) if after prior to the sale of at least 75% of the Registrable Securities included in the applicable registration relating to such registration statement has become effectiverequest, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with adversely affected by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason not attributable and the Company fails to have such stop order, injunction or other order or requirement removed, withdrawn or resolved to the Selling Holders and Investor’s reasonable satisfaction within thirty (30) days of the date of such interference is not thereafter eliminatedorder, or (iii) if the conditions to closing specified in the underwriting agreement, if any, agreement or purchase agreement entered into in connection with the registration relating to such registration request are not satisfied or waived, (other than by reason as a result of a failure on material default or breach thereunder by the part Investor).
(h) Upon written request of the Selling Holders. If Investor following 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the InvestorsLockup Date, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall will use its commercially reasonable efforts to meet the requirements of qualify for registration on and to promptly file, Form S-3 or any comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”), and such Short-Form Registration will be a “shelf” registration statement providing for so long as any the registration, and the sale on a continuous or delayed basis, of the Registrable Securities remain outstanding and under no circumstances shall pursuant to Rule 415. Upon filing a Short-Form Registration, the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”will, “best efforts” or “all if applicable, use its commercially reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securitiesefforts to: (i) if cause such Selling Holders have requested the inclusion therein of more than one class of Registrable SecuritiesShort-Form Registration to be declared effective, and (ii) keep such Short-Form Registration effective with the Underwriters’ Representative SEC at all times and re-file such Short-Form Registration upon its expiration. The Company shall cooperate in any shelf take-down by amending or Agent advises each supplementing the prospectus statement related to such Selling Holder in writing thatShort-Form Registration as may be requested by the Investor or any transferees or as otherwise required, in its opinion, until the inclusion of more than one class of Registrable Securities Investor or any transferees who would adversely affect require such offering, the Demanding Holders holding at least registration to effect a majority sale of the Registrable Securities proposed to be sold therein by them, shall decide which class of no longer hold the Registrable Securities shall be included therein or until the time specified in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder Section 6.14 hereof. The Company will pay all Registration Expenses incurred in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersconnection with any Short-Form Registration.
Appears in 3 contracts
Sources: Stockholder Agreement (China Investment Corp), Stock Purchase Agreement (China Investment Corp), Stockholder Agreement (Aes Corp)
Demand Registration. (ia) If one Provided that the Company does not have the Registration Statement filed pursuant to Section 2 effective and usable to such Holder or more group of Holders that own an aggregate requesting a Demand Registration under this Section 3, any Holder or group of 51% Holders holding, in the aggregate, thirty-five percent (35%) or more of the Registrable Securities then issued and outstanding (the “Demanding HoldersOutstanding Amount”) shall at any time make a have the right, by written request notice given to the CompanyCompany (a “Demand Notice”), to request the Company to register under and in accordance with the provisions of the Securities Act all or any portion of the Registrable Securities designated by such Holder(s); provided, however, that the Registrable Securities requested to be registered constitute at least thirty-five percent (35%) of the Outstanding Amount. Each request for a Demand Registration shall be in writing and shall specify the approximate aggregate number of Registrable Securities requested to be registered (which aggregate number of Registrable Securities must either (i) have a value equal to at least $15,000,000 based on the closing price of such securities on the last trading day prior to the date of such request or, in the case no closing price is available, at the anticipated price offered to the public or (ii) equal the total number of Registrable Securities held by a Holders with respect to any Holder. In no event shall the Company be obligated to effectuate more than two (2) Demand Registrations in any 12-month period. A registration shall not count as a Demand Registration until it has become effective. In no event shall Shelf Registrations (and any other filing made pursuant to Section 2 hereof) or Shelf Takedowns be deemed to constitute Demand Registrations.
(b) Upon receipt of a Demand Notice, the Company shall cause there promptly (and in any event within ten (10) Business Days from the date of receipt of such Demand Notice), notify all other Holders, if any, of the receipt of such Demand Notice and allow them the 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 managing underwriter or underwriters participating in such offering advise in writing the Holders of Registrable Securities to be filed included in 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. In the event of such a pro-rata distribution, to the extent that any Holder (or Holders) has not submitted a Demand Notice, or withdraws from the underwriting, then those Shares that would have been allocated pro-rata to the non-participating Holder if they had participated shall be distributed amongst the participating Holders, pro rata according to each participating Holder’s overall percentage of ownership in the Company.
(c) The Company, within thirty (30) 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 Commission SEC, and the Company shall thereafter use its reasonable best efforts to cause to be declared effective as promptly as practicable, a Registration Statement on the appropriate form for the registration statement meeting and sale, in accordance with the requirements intended method or methods of distribution, of the total number of Registrable Securities Act specified by the Holders in such Demand Notice (a “Demand Registration”). Any Demand Registration may, and at the request of the Holders submitting the Demand Notice, be a Shelf Registration.
(d) The Company shall use reasonable best efforts to keep each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made Registration Statement filed pursuant to this Section 2.1 if within six (6) months prior to 3 continuously effective and usable for the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention resale of the Secretary of the Company, and shall specify the number of Registrable Securities to be registeredcovered thereby (i) in the case of a Registration that is not a Shelf Registration, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to period of one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on from the date of on which the relevant request pursuant to Section 2.1(i).
SEC declares such Registration Statement effective and (iiiii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date case of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, for a period of three (3) years from the Company shall:
(i) File date on which the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicableSEC declares such Registration Statement effective, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective either case (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as all of which all the Registrable Securities under the Demand covered by such Registration statement shall Statement have been disposed of in the manner described in the sold pursuant to such Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration as such period may be extended pursuant to this Section 2 3. The time period for which the Company is suspended or, in required to maintain the case effectiveness of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period 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 suspension or postponementRegistration 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.
2.4. (e) The Company shall be obligated entitled to effect no more than three Demand Registrations postpone the filing of any Registration Statement otherwise required to be prepared and such number filed by the Company pursuant to this Section 3, or suspend the use of Shelf Registrations as may be necessary to provide each and every Substantial Holder with any effective Registration Statement under this Section 3, for a reasonable period of time, if the right to request one Shelf Registration. For purposes Board of Directors of the preceding sentence, Company determines in the Board of Directors’ reasonable good faith judgment that the registration shall not and distribution of the Registrable Securities covered or to be deemed to have been effected covered by such Registration Statement would (i) unless materially interfere with any pending material financing, acquisition, disposition, or corporate reorganization involving the Company or any of its subsidiaries, taken as a registration statement with respect thereto has become effectivewhole, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedrequire premature disclosure thereof, or (iii) if be seriously detrimental to the conditions to closing specified in Company and its stockholders, which such determination shall be made by a majority of the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure members then serving on the part Company’s Board of Directors, and promptly gives the Holders written notice of such determination, containing a general statement 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all reasons for such postponement and an approximation 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offeringanticipated delay; provided, however, that each Person so selected (i) the aggregate number of days included in all delay periods during any consecutive twelve (12) months shall be reasonably acceptable to not exceed the Company.
2.7aggregate of (x) forty-five (45) days minus (y) the number of days occurring during all Interruption Periods during such consecutive twelve (12) months and (ii) a period of at least ninety (90) days shall elapse between the termination of any delay period or Interruption Period and the commencement of the immediately succeeding delay period. Whenever If the Company shall effect so postpone the filing of a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Registration Statement, the Holders of Registrable Securities: (i) if such Selling Securities to be registered shall have the right to withdraw the request for registration by giving written notice from the Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed that were to be sold therein by themregistered to the Company within forty-five (45) days after receipt of the notice of postponement or, if earlier, the termination of such delay period (and, in the event of such withdrawal, such request shall decide not be counted for purposes of determining the number of requests for registration to which class the Holders of Registrable Securities are entitled pursuant to this Section 3). The Company shall not be entitled to initiate or continue a delay period unless it shall (A) concurrently prohibit sales by all other security holders under registration statements 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 directors and executive officers of the Company.
(f) The Company shall not include any securities (whether for its own account or otherwise) that are not Registrable Securities in any Registration Statement filed pursuant to this Section 3 without the prior written consent of the Holders of a majority in number of the Registrable Securities covered by such Registration Statement. Any such securities so included shall be included therein subject to the cut-back provisions of Section 3(a)(ii).
(g) Holders of a majority in such offering and number of the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested Registrable Securities to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable Registration Statement pursuant to this Section 3 may, at any time prior to the Majority Selling Holderseffective date of the Registration Statement relating to such Registration, securities shall be included in revoke such offering and the related registration, request (a “Demand Request”) by providing a written notice to the extent Company revoking such request. Any such Demand Request so withdrawn, prior to filing a Registration Statement pursuant to such Demand Request with the SEC, shall not be counted for purposes of determining the number of requests for registration to which the Holders of Registrable Securities are entitled pursuant to this Section 3. Any such Demand Request so withdrawn after filing the Registration Statement pursuant to the Demand Request to which such Registration Statement relates with the SEC shall not be counted for purposes of determining the number of requests for registration to which the Holders of Registrable Securities are entitled pursuant to this Section 3 if the Holders of Registrable Securities who revoked such request reimburse the Company for all its out-of-pocket expenses incurred in the preparation, filing and processing of the amount which can Registration Statement; provided, however, that, if such revocation was based on (i) the Company’s failure to comply in any material respect with its obligations hereunder or (ii) the institution by the Company of a Delay Period or the occurrence of any Interruption Period, such reimbursement shall not be sold within such price range, and on a pro rata basis among all Selling Holdersrequired.
Appears in 2 contracts
Sources: Merger Agreement (S1 Corp /De/), Merger Agreement (Fundtech LTD)
Demand Registration. (a) Upon notice to the Company from one or more Shareholders holding Restricted Shares having an aggregate fair market value of at least U.S.$15 million (based upon the then-prevailing market price for the Shares on the Nasdaq National Market or other principal securities market on which the Shares are listed or, in the absence of any such listing, as determined in good faith by the Board), such Shareholders (the "Requesting Shareholders") shall have the right to request (a "Demand Request") in writing a registration of such Restricted Shares. Each Demand Request shall (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities Restricted Shares which each Requesting Shareholder intends to be registeredsell or dispose of, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled state the intended method or methods by which the Requesting Shareholder intends to postpone for up to one hundred twenty (120) days the filing sell or dispose of any such Restricted Shares. Upon receipt of a Demand Registration statement otherwise required to be prepared and filed Request pursuant to this Section 2.1, if the Board determinesCompany shall (as requested) (i) cause to be filed, within the later of (x) 90 days of the date of delivery to the Company of the Demand Request and (y) 180 days after the effectiveness of the most recently filed registration statement by the Company, a registration statement covering such Restricted Shares which the Company has been so requested to register, providing for the registration under the Securities Act of such Restricted Shares to the extent necessary to permit the disposition of such Restricted Shares so to be registered in its good faith reasonable judgment (accordance with the concurrence intended method of the managing underwriter, if any), that distribution specified in such registration and the Transfer or Registrable Securities 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 determinationDemand Request; provided, however, that the Company may delay making such filing or taking such action by not more than ninety (90) days in any 12-month period if the Company, prior to the time it would otherwise have been required to file such registration statement or take such action (but not including the preparation of the registration statement), determines in good faith that the filing of such registration statement or the taking of such action would require the disclosure of material, non-public information that, in the reasonable judgment of the Board, would be detrimental to the Company if so disclosed (and a delay would be likely to reduce the detrimental effect of such disclosure or obviate the need for such disclosure to be made, or would otherwise adversely affect a financing, acquisition, disposition, merger or other material transaction), (ii) shall not use its best efforts to have postponed such registration statement declared effective by the Commission as soon as practicable thereafter, and (iii) refrain from filing any other registration statements with respect to any other securities of the Company until such date which is 180 days following effectiveness of the registration statement filed in response to the Demand Request; provided, however, that notwithstanding this clause (iii), each of Carlyle/Carlton and Hicks Muse shall be permitted to make at least one demand in any 12-mon▇▇ ▇▇riod, subject to the limitations set forth in Section 2.1(c) hereof. The underwriter shall be selected by the Requesting Shareholders and shall be reasonably acceptable to the Company for any registration pursuant to this Section 2.1(ii2.1.
(b) In the filing event that the Company is required to file a registration statement covering any Restricted Shares of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request Requesting Shareholders pursuant to Section 2.1(i).
(iii2.1(a) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesabove, the Company shall promptly give written notice of be permitted to include newly-issued securities ("Piggyback Securities") in such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness managing underwriter of a such proposed registration pursuant determines and advises in writing that the inclusion of all Piggyback Securities proposed to this Section 2 is suspended or, be included in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder underwritten public offering would interfere with the right to request one Shelf Registration. For purposes successful marketing of the preceding sentenceRequesting Shareholders' Restricted Shares, registration then the Company shall not be deemed permitted to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable include any Piggyback Securities thereunder is interfered with by any stop order, injunction or other order or requirement in excess of the Commission or other governmental agency or court 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 agreementamount, if any, entered into of Piggyback Securities which the managing underwriter of such underwritten offering shall reasonably and in connection with good faith agree in writing to include in such registration offering in excess of any amount to be registered for the Requesting Shareholders. The Piggyback Securities that are not satisfied or waived, other than excluded from the underwritten public offering pursuant to the preceding sentence shall be withheld from the market by reason of a failure on the part of the Selling Holders. If the Company for a period, not to exceed 180 days from the closing of such underwritten public offering, that the managing underwriter determines is necessary in order to effect such underwritten public offering.
(c) The Company shall not be required to comply with more than eight Demand Requests, such that the Shareholders will 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 the following Demand Requests: (i) if Carlyle/Carlton shall have three such Demand Requests; (ii) Hicks Muse shall have three such Demand Requests; (iii) the El Sitio Fo▇▇▇▇▇s shall have, in the aggregate, two such Demand Requests. A request for registration shall not count as a Demand Registration, upon the earlier of Request until (xa) the date as of which all registration statement relating thereto has been declared effective by the Commission and (b) the Shareholder making the demand for registration is able to sell at least 75% 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (1945 Carlton Investments LLC), Registration Rights Agreement (Hicks Thomas O)
Demand Registration. (ia) If one at any time the Partnership shall receive a written request (a “Demand Notice”) from the Demand Committee that the Partnership effect the registration under the Securities Act of all or more Holders that own an aggregate of 51% or more any portion of the Registrable Securities then outstanding (specified in the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act Demand Notice (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to specifying the information set forth under Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any2.5(j), that such registration and then the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company Partnership shall use its commercially reasonable efforts to meet effect, as expeditiously as reasonably practicable, subject to the requirements restrictions in Section 2.2(d), the registration under the Securities Act of Form S-3 for so long as any the Registrable Securities remain outstanding and for which the Demand Committee has requested registration under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under this Section 2.2, 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.
2.6(b) At any time prior to the effective date of the registration statement relating to such registration, the Demand Committee may revoke such Demand Registration request by providing a notice to the Partnership revoking such request. The Partnership shall be liable for and pay all Registration Expenses in connection with any Demand Registration.
(c) If any registration pursuant to Section 2 a Demand Registration involves an underwritten offering Public Offering and the managing underwriter advises the Partnership and the Demand Committee that, in its view, the number of units of Registrable Securities requested to be included in such registration exceeds the largest number of units that can be sold without having a material adverse effect on such offering, including the price at which such units can be sold (whether on a the “firmMaximum Offering Size”, “best efforts” or “all reasonable efforts” basis or otherwise), the Partnership shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Demand Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, in such proportions as shall be determined by the Demand Committee);
(ii) second, any securities proposed to be registered by the Partnership or an agented offeringany securities proposed to be registered for the account of any other persons, with such priorities among them as the Partnership shall determine.
(d) Upon notice to the Demand Committee, the Majority Selling Holders, or the Initiating Substantial Holder, as the case Partnership may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect postpone effecting a registration pursuant to this Section 2 2.2 on up to three occasions during any period of six consecutive months for a reasonable time specified in connection with an underwritten offering by one the notice but not exceeding 120 days in the aggregate (which period may not be extended or more Selling Holders of Registrable Securities: renewed), if (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, General Partner shall determine in good faith that effecting the registration would materially and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority an offering of securities of the Registrable Securities proposed to be sold therein by them, shall decide Partnership the preparation of which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and had then been commenced or (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder Partnership is in writing that, in its opinion, possession of material non-public information the amount disclosure of securities requested to be included which during the period specified in such offering (whether by Selling Holders or others) exceeds notice the amount which can General Partner believes in good faith would not be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent best interests of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersPartnership.
Appears in 2 contracts
Sources: Registration Rights Agreement (Blackstone Group L.P.), Registration Rights Agreement (Blackstone Group L.P.)
Demand Registration. (i) If At any time on or after the date six months after the date hereof , if one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCompany (the "Demanding Holders"), the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s 's Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six nine (69) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty ninety (12090) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or of Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 twelve (12) month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all other Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s 's Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “"Initiating Substantial Holder”"), shall be entitled to have all or any number of such Initiating Substantial Holder’s 's Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “"Shelf Registration”"). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s 's best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s 's best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy ninety (27090) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three (3) years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three four Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy ninety (27090) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (i) be selected by the Company and be reasonably acceptable to the Majority Selling Holders, or by the Initiating Substantial Holder, as the case may be, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonera Corp), Registration Rights Agreement (Voicestream Wireless Holding Corp)
Demand Registration. (ia) If one or more Holders that own an aggregate At any time after 180 days after the Qualified Public Offering, the holders of 51% or more a majority of the Registrable Securities then outstanding 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 manner specified in such request (the “Demanding HoldersDemand Request”). No later than five (5) shall at any time make a written request to the Companydays after receipt of such Demand Request, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date promptly deliver notice of such request a to all Shareholders 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 Demand Registration Statement pursuant Request 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 in the underwritten public offering to the extent provided herein. The Company will use its commercially reasonable efforts to expeditiously effect (but in any event no later than 180 days after the receipt of the Demand Request) the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act, but only to the extent provided for in this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 determination2; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise be required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to a request under this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as once. Notwithstanding anything to the contrary contained herein, no request may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 made under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than within ninety (90) days after the effective date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, a registration statement filed by the Company shall use its commercially reasonable efforts to meet covering a firm commitment underwritten public offering in which the requirements holders of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, shall have been entitled to join and in which there shall have been effectively registered a majority of the right Registrable Securities as to select which registration shall have been requested. A registration will not count as a requested registration under this Section 2.1(a) unless and until the underwriter or underwriters and manager or managers registration statement relating to administer such underwritten offering or registration has been declared effective by the placement agent or agents for such agented offeringCommission at the request of the initiating Shareholders; provided, however, that each Person so selected a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2.1(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2.1(a).
(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 reasonably acceptable reduced to a number deemed satisfactory by such managing underwriter; provided, that the Company.
2.7. Whenever shares to be excluded shall be determined in the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders following order of Registrable Securitiespriority: (i) if securities to be registered by the Company pursuant to such Selling Holders have requested registration statement shall be the inclusion therein first to be reduced or excluded and (ii) Registrable Securities of more than one class the Shareholders requesting registration shall be the last to be reduced or excluded. If there is a reduction of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class number of Registrable Securities would adversely affect pursuant to clause (ii), such reduction shall be made on a pro rata basis based upon the Registrable Securities sought to be included by the Shareholders requesting registration, and, if such reduction exceeds 25% of the Registrable Securities of Shareholders requested to be included in such offering, then the Demanding Holders holding at least registration shall not cause a reduction in the number of demand registrations permitted under Section 2.1(a).
(c) With respect to a request for registration pursuant to Section 2.1(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the Board of Directors and approved by the holders of a majority of the Registrable Securities proposed to (which approval will not be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the unreasonably withheld or delayed). The Company may not cause any other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount registration of securities requested for sale for its own account (other than a registration effected solely to be included in such offering (whether by Selling Holders implement an employee benefit plan or others) exceeds the amount a transaction to which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent Rule 145 of the amount which can be sold Securities Act is applicable) to become effective within such price range, and on a pro rata basis among all Selling Holdersninety (90) days following the effective date of any registration required pursuant to this Section 2.1.
Appears in 2 contracts
Sources: Securities Subscription Agreement (Adecoagro S.A.), Registration Rights Agreement (Adecoagro S.A.)
Demand Registration. (a) Any time after the earlier of (i) If one December 31, 2018 and (ii) 180 days after a Qualified IPO, an Investor Majority may notify the Company in writing that they intend to offer or more Holders that own an aggregate cause to be offered for public sale all or any portion of 51% or more of the their Registrable Securities then outstanding (in the “Demanding Holders”) shall at any time make a written request to the Companymanner specified in such request. Upon receipt of such request, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date promptly deliver notice of such request a Demand Registration Statement pursuant to this Section 2.1 all Investors holding Registrable Securities who shall then have been declared effective by thirty (30) days to notify the CommissionCompany in writing of their desire to be included in such registration. Any If the request made pursuant 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 this Section 2.1 participate in such registration shall be addressed conditioned upon such Person’s participation in such underwritten public offering and the inclusion of such Person’s Registrable Securities in the underwritten public offering to the attention of the Secretary of the Company, and shall specify the number of extent provided herein. The Company will use its best efforts to expeditiously file a Form S-1 covering all Registrable Securities to be registered, the intended methods of disposition thereof and that the whose holders request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, participation in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and under the Transfer or Registrable Securities contemplated thereby would materially interfere withAct, or require premature disclosure of, any financing, acquisition or reorganization involving but only to the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationextent provided for in this Agreement; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise be required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act pay for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to a request under this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as two (2) times. Notwithstanding anything to the contrary contained herein, no request may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 made under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than within ninety (90) days after the effective date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, a registration statement filed by the Company shall use its commercially reasonable efforts to meet covering a firm commitment underwritten public offering in which the requirements holders of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated have been entitled to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration join 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, or the Initiating Substantial Holder, as the case may be, 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 right registration statement relating to select such registration has been declared effective by the underwriter or underwriters and manager or managers to administer such underwritten offering or Commission at the placement agent or agents for such agented offeringrequest of the initiating shareholders; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a holders that participate in such registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders 2(a) and hold at least sixty percent (60%) of Registrable Securities: Securities (ithe “Withdrawing Holders”) if such Selling Holders have requested may request, in writing, that the inclusion therein of more than one class of Registrable SecuritiesCompany withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and the Underwriters’ Representative Withdrawing Holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or Agent advises each such Selling Holder in writing thatto file another registration statement, in its opinion, accordance with the inclusion procedures set forth herein and without reduction in the number of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least demand registrations permitted under this Section 2(a).
(b) If a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such requested registration involves an underwritten public offering and the related registration, and managing underwriter of such offering determines in good faith that the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount number of securities requested 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, however, that the shares to be excluded shall be determined in the following order of priority: (whether i) persons not having any contractual or other right to include such securities in the registration statement, (ii) securities held by Selling Holders 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 holders who did not make the original request for registration and (v) Registrable Securities of holders who requested such registration pursuant to Section 2(a). If there is a reduction of the number of Registrable Securities pursuant to clauses (iv) or others(v), such reduction shall be made on a pro rata basis (based upon the aggregate number of Registrable Securities held by such holders).
(c) exceeds With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the amount which can managing underwriter shall be chosen by the holders of two-thirds (2/3) in interest of the Registrable Securities to be sold in such offering within (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 price range acceptable registration effected solely to the Majority Selling Holders, securities shall be included in such offering and the related registration, implement an employee benefit plan or a transaction to the extent which Rule 145 of the amount which can be sold Securities Act is applicable) to become effective within such price range, and on a pro rata basis among all Selling Holdersone hundred twenty (120) days following the effective date of any registration required pursuant to this Section 2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dicerna Pharmaceuticals Inc), Registration Rights Agreement (Dicerna Pharmaceuticals Inc)
Demand Registration. (a) If the Company has exercised the 2010 Consideration Substitute Right pursuant to Clause 7.1.2 of the Option Agreement, the Company shall, in accordance with Article IV below and subject to Section 2.8 below, either (i) If one or more Holders file a registration statement under the Securities Act with the Commission to register under the Securities Act that own an aggregate number of 51% or more of the Registrable Securities then outstanding that the Company determines represents the maximum number of Registrable Securities that will be issued as the Stock Settlement Amount, or (ii) file with the Commission a prospectus supplement (the “Demanding HoldersProspectus Supplement”) shall to an existing shelf registration statement on Form S-3 which is at any the time make a written request currently effective (the “Form S-3”) to register such number of Registrable Securities, but, in each case, only to the Companyextent that the Shareholders have complied with their obligations under Sections 2.6 and 6.1 below (a “Registration”). Subject to Section 2.8 below, the Company shall use its reasonable best efforts to cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, registered for resale by the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 Shareholders under the Securities Act (a “Shelf Registration”)on the Required Registration Date. Any request made pursuant to For purposes of this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registeredAgreement, the intended methods of disposition thereof and that the request is for a Shelf “Required Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective Date” means (x) if a Demand RegistrationJune 1, for up 2010, in the event that the Shareholders do not advise the Company that they intend to two hundred seventy (270) days or until such earlier date as of which all distribute the Registrable Securities under the Demand Registration statement shall have been disposed by means of an underwriting in the manner described in the Registration Statementaccordance with Section 2.3, and (y) if a Shelf RegistrationJune 8, for three years. Notwithstanding 2010, in the foregoing, if for any reason event that the effectiveness Shareholders advise the Company that they intend to distribute the Registrable Securities by means of a registration pursuant to this an underwriting in accordance with Section 2 is suspended or, 2.3 and (z) in the case of a Demand Registration, postponed as permitted by Section 2.1(ii)the issuance of Deferred Shares, the foregoing period dates that are (A) the 16th day after the issuance of such Deferred Shares, in the event that the Shareholders do not advise the Company that they intend to distribute such Registrable Securities by means of an underwriting in accordance with Section 2.3 and (B) the 23rd day after the issuance of such Deferred Shares, in the event that the Shareholders advise the Company that they intend to distribute such Registrable Securities by means of an underwriting in accordance with Section 2.3; provided however, that such Required Registration Date shall be extended by one day for each day the aggregate number of days of such suspension or postponement.
2.4. The Shareholders have not complied with their obligations under Sections 2.6 and 6.1 below and provided further that if the Shareholders have advised the Company shall be obligated that they intend to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of distribute Registrable Securities thereunder is interfered with by any stop ordermeans of an underwriting, injunction or other order or requirement of the Commission or other governmental agency or court 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have not been disposed of pursuant registered in connection therewith under the Securites Act prior to 7:00 a.m. (NY time) on June 8, 2009 (or the Registration Statement, and (y) 23rd day after the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition issuance of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligibleDeferred Shares, as the case may be) for any reason whatsoever, and thereafter then notwithstanding any provision of this Agreement which requires CEDC to maintain its eligibilitytake action or assist or cooperate in respect of an underwritten offering, for CEDC shall be entitled to file the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form Prospectus Supplement contemplated by the first sentence of this Section 2.1 as if such request for an underwritten offering had not been made. It is understood and not later than five (5) business days after agreed that the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration sole remedy of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 Shareholders with respect to a failure to file or cause the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 be registered under the Securities Act and cause such Registration Statement (on or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable prior to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 Required Registration Date is set forth in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority Clause 7.2 of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersOption Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Central European Distribution Corp), Registration Rights Agreement (Central European Distribution Corp)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make and from time to time on and/or after the Closing Date, each Holder shall severally have the option and right, exercisable by delivering a written request notice to Parent (a “Demand Notice”), to require Parent to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, the Company shall cause there to be filed prepare and file with the Commission a registration statement meeting Registration Statement registering the requirements offering and sale of the Securities Act (a “Demand Registration”), number and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number type of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included terms and conditions specified in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”)Demand Notice, shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering which may include sales on a delayed or continuous basis pursuant to Rule 415 under the Securities Act pursuant to a Shelf Registration Statement (a “Shelf Demand Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to be registered, include in such Demand Registration and the intended methods of disposition thereof and thereof. Notwithstanding anything to the contrary herein, in no event shall Parent be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2.1(b) have an aggregate value of at least $200 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice; provided, however, that the request is for a Shelf Minimum Amount shall not apply in the event that, as the result of Cut Back Shares being removed from such Registration Statement pursuant to this Section 2.2.
2.32.1(a), the Registrable Securities of the Holders to be included therein after compliance with Section 2.1(b) have an aggregate value of less than $200 million. Following receipt If at any time the Commission takes the position that some or all of the Registrable Securities proposed to be included in a request for Registration Statement filed pursuant to a Demand Registration must be removed from such Registration Statement (such portion of the Registrable Securities, the “Cut Back Shares”) in order for all of the Registrable Securities in such Registration Statement filed pursuant to a Demand Registration to be eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or for the Initiating Holder to not be named as an “underwriter” in such Registration Statement, then if the Initiating Holder so elects, Parent shall remove the Cut Back Shares from such Registration Statement. Any Cut Back Shares so removed pursuant to this Section 2.1(a) shall be allocated among the Holders including Registrable Securities for resale on such Registration Statement on a pro rata basis. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of Section 2.1(c) if, as a result of the cutback provisions in this Section 2.1(a) or Registrable Securities of Holders other than the Initiating Holder included in such Demand Registration pursuant to Section 2.1(b), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $200 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(b) Within five Business Days (or if the Registration Statement will be a Shelf RegistrationRegistration Statement, within two Business Days) after the Company receipt of the Demand Notice, Parent shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if Parent is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall:
(i) File , subject to the registration statement limitations of this Section 2.1, file a Registration Statement in accordance with the Commission as promptly as practicableterms and conditions of the Demand Notice, and which Registration Statement shall cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration (such request to be given to Parent within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by Parent pursuant to this Section 2.1(b)). Parent shall use the Company’s reasonable best efforts to cause such Registration Statement to become and remain effective (including using reasonable best efforts to file a Registration Statement including Registrable Securities included on any previous Registration Statement that ceases to be effective, which, for the avoidance of doubt shall not be considered an additional Demand Registration for any Holder pursuant to Section 2.1(c)) under the Securities Act until all such securities registered for resale thereunder cease to be Registrable Securities (the “Effectiveness Period”).
(c) Subject to the other limitations contained in this Agreement, Parent is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering (or such shorter time as Parent may notify the Holders in writing) (any such time period, a “No Demand Period”), (B) more than a total of four Demand Registrations in the aggregate; provided, that notwithstanding anything to the contrary herein, in no event shall Parent be required to effect more than two Demand Registrations within a given calendar year, and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have the registration declared become and remains effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard and is sufficient to the need to prepare current financial statements, conduct due diligence permit offers and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes sales of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution number and type of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of on the Commission or other governmental agency or court for any reason not attributable to the Selling Holders terms and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into Demand Notice in connection accordance with such registration are not satisfied the intended timing and method or waived, other than by reason methods of a failure on distribution thereof specified in the part of the Selling HoldersDemand Notice. If the Company shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 No Demand Registration shall be deemed to have been satisfied (ioccurred for purposes of this Section 2.1(c) if a the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in which case the Initiating Holder shall be entitled to an additional Demand RegistrationRegistration in lieu thereof.
(d) A Holder (and, upon the earlier if applicable, Carlyle) may withdraw all or any portion of (x) the date as of which all of the its Registrable Securities included therein shall have been disposed of pursuant in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder (and, if applicable, Carlyle) to the effect that the Holder (and, if applicable, Carlyle) is withdrawing an amount of its Registrable Securities such that the remaining amount of Registrable Securities to be included in the Demand Registration is below the Minimum Amount, Parent may cease all efforts to secure effectiveness of the applicable Registration Statement, and unless one or more Holders other than the withdrawing Holder(s) shall promptly request Parent in writing to include additional Registrable Securities in the Demand Registration such that amount of Registrable Shares to be included in the Demand Registration satisfies the Minimum Amount (ya “Requisite Holder Substitution”). In the absence of a Requisite Holder Substitution, such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2.1(c) unless (A) the date Initiating Holder shall have paid or reimbursed Parent for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by Parent in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of which securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to Parent’s request for suspension pursuant to Section 3.15.
(e) Parent may include in any such Demand Registration other Parent Securities for sale for its own account or for the account of any other Person, subject to Section 2.3(c).
(f) Subject to the limitations contained in this Agreement, Parent shall have been Continuously Effective for a period effect any Demand Registration on such appropriate registration form of two hundred seventy the Commission (270A) days, as shall be selected by Parent and (iiB) if a Shelf Registrationsubject to applicable law and the requirements of the Commission, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 as shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant Demand Notice; provided that, subject to Section 2.1(i3.15, (X) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by if the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement is on Form S-1 or other appropriate form and not later than five (5) business days after S-1, Parent shall maintain the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration effectiveness of the offer and sale by the Investors, the Company shall file Registration Statement then in effect until such time as a Registration Statement on Form S-3 with respect to covering the Registrable Securities covered has been declared effective by the Commission (provided that Form S-1 is then available for sales on a delayed or continuous basis under the provisions of Rule 415 in respect of such Demand Registration), and (Y) if Parent becomes, and is at the time of its receipt of a Demand Notice eligible to use Form S-3, the Demand Registration Statement for any offering and selling of Registrable Securities shall be registered on Form S-1 S-3 or other any equivalent or successor form filed pursuant under the Securities Act (if available to Section 2(iParent) and (Z) if at the time of its receipt of a Demand Notice, Parent is a WKSI, the Demand Registration for any offering and include in such selling of Registrable Securities shall be registered on an Automatic Shelf Registration Statement on Form S-3 the information required by Rule 429 or any equivalent or successor form under the Securities Act) or convert the Act (if available to Parent). If at any time a Registration Statement on Form S-1 S-3 is effective and a Holder provides written notice to Parent that it intends to effect an offering of all or other formpart of the Registrable Securities included on such Registration Statement, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause Parent will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(g) Without limiting Article III, in connection with any Demand Registration pursuant to and in accordance with this Section 2.1, Parent shall (A) promptly prepare and file or such amendment) cause to be declared effective no later than ninety prepared and filed (901) days after such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the date of filing securities subject to such Demand Registration, including under the securities laws of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, jurisdictions as the case may be, 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 offeringreasonably request; provided, however, that each Person so selected no such qualification shall be reasonably acceptable required in any jurisdiction where, as a result thereof, Parent would become subject to the Company.
2.7. Whenever the Company shall effect general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration pursuant and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to this Section 2 in connection with an underwritten offering by one apply for listing or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of to list the Registrable Securities proposed subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be sold therein reasonably necessary or appropriate or reasonably requested by them, shall decide which class the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(h) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, Parent shall amend or supplement such Registration Statement as may be included therein necessary in order to enable such offering transferee to offer and the related registration, and the other class sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall Parent be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested required to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within file a price range acceptable post-effective amendment to the Majority Selling HoldersRegistration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, securities shall be included in such offering and the related registration, to the extent Affiliates of the amount which can be Holder or transferees of the Holder or (B) Parent has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold within under) such price rangeRegistration Statement, and on a pro rata basis among all Selling Holdersother than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (WildHorse Resource Development Corp), Registration Rights Agreement (Chesapeake Energy Corp)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of Subject to the Registrable Securities then outstanding (the “Demanding Holders”) shall provisions hereof, at any time make a written request to on or after the Companysix (6) month anniversary of the Closing Date (as defined in the Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(ian Underwritten Offering (as defined below).
, and (iiiii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise containing all information about such Holder required to be prepared included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and filed pursuant (y) use commercially reasonable efforts to this Section 2.1effect such registration (including, if without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Board determines, in its good faith reasonable judgment (with the concurrence Securities Act and any other governmental requirements or regulations) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationhas been so requested to register; provided, however, that (i) the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or under this Section 4.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an Underwritten Public Offering. In such case, (i) the Holders of a Shelf Registrationmajority of the shares of Registrable Stock to be sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten Offering and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 5.8 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company shall:
(ito and for the benefit of the underwriter(s) File shall also be made to and for the registration statement with benefit of the Commission as promptly as practicableHolders proposing to distribute their securities through the Underwritten Offering, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the Company’s best efforts liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to keep losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the relevant registration statement Continuously Effective Company by or on behalf of such Holder expressly for inclusion therein and (xb) if a Demand Registrationshall not in any event, for up absent fraud or intentional misrepresentation, exceed an amount equal to two hundred seventy the net proceeds to such Holder (270after deduction of all underwriters’ discounts and commissions) days or until such earlier date as from the disposition of which all the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days terms of such suspension or postponement.
2.4underwriting agreement. The Company shall not be obligated to effect no more than three or participate in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering of Company securities.
(c) If, in connection with a Demand Registrations Registration in the form of an Underwritten Offering, the managing underwriter(s) give written advice to the Company of an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum Number prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities shall be allocated pro rata among the Holders thereof on the basis of the number of Shelf Registrations as may Registrable Securities requested to be necessary to provide included therein by each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, such Holder.
(d) A registration shall will not be deemed to have been effected (i) as a Demand Registration unless a the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or administrative agency, or if any court for any reason not attributable prevents or otherwise limits the sale of the Registrable Securities pursuant to the Selling Holders registration, 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 each case less 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and or (ii) if if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.1(a). If (i) a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 4.1 is deemed not to have been effected as a Demand Registration or (ii) the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request registration requested pursuant to this Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by 4.1 does not remain continuously effective until the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use earlier of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than forty-five (545) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration commencement of the offer and sale distribution by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to Holders of the Registrable Securities covered by such registration or the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing completion of such Registration Statement (or amendment). Notwithstanding the foregoingdistribution, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 4.1 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.1(d), shall decide which class each Holder of Registrable Securities shall be included therein in permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such offering and the related registrationDemand Registration, and the other class provided that such registration nonetheless shall be excluded; and count as a Demand Registration for purposes of clause (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersproviso to Section 4.1(a).
Appears in 2 contracts
Sources: Stockholders Agreement (AV Homes, Inc.), Securities Purchase Agreement (AV Homes, Inc.)
Demand Registration. (i) If one or more Holders The Company hereby agrees that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written after one year from the Closing Date the Purchaser may request to the Company, that the Company shall cause there to be filed with effect the Commission a registration statement meeting the requirements of under the Securities Act of 1933, as amended (a “Demand Registration”)the "Securities Act") of all or part of the Purchased Securities, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Sharesthereupon will, as expeditiously as possible, use its best efforts to effect the Demanding Holder shall report in writing; providedregistration under the Securities Act of the Purchased Securities which the Company has been so requested to register by the Purchaser, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior all to the date of such request a Demand Registration Statement pursuant extent requisite to this Section 2.1 shall have been declared effective by permit the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention disposition of the Secretary of the Company, and shall specify the number of Registrable Purchased Securities so to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 be required to file any such registration statement under this Section 2.1(ii9(a) unless the filing anticipated aggregate gross offering price is at least $2,000,000.
(i) The Company shall pay all of any other Demand Registration the expenses in connection with the registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i3(a).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder mayexcept for underwriting discounts and commissions and transfer taxes, within twenty (20) days after receipt of such noticeincluding, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request but not limited to the Company (reasonable attorneys fees of one counsel selected by the “Initiating Substantial Holder”)Purchaser, which shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a not exceed $1,000 per effective registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offeringstatement.
(ii) Use the Company’s best efforts to keep the relevant A registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration requested pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall 9(a) will not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective; provided, (ii) if that if, within 180 days after such registration statement it has become effective, the offering of the Purchased Securities pursuant to such registration 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 Securities and Exchange Commission (the "SEC") or other governmental agency or court for any reason court, such registration will be deemed not attributable to the Selling Holders and such interference is not thereafter eliminated, or have been effected.
(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 If 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 requested registration pursuant to this Section 2 shall be deemed to have been satisfied (i9(a) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, and the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the managing underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever advises the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount number of securities requested to be included in such offering (whether by Selling Holders or others) registration exceeds the amount number which can be reasonably sold in such offering within a price range acceptable to offering, the Majority Selling HoldersCompany will include in such registration first, securities offered by the Company, second, the Purchased Securities which have been requested to be registered pursuant to this Section 9(a), third, an amount of securities of the Company which the Company is including in such registration statement pursuant to any incidental ("piggyback") registration rights, and fourth, the amount of other securities ("Other Securities") of the Company held by all other security holders which, in the good faith opinion of such managing underwriter, can be sold without causing a material adverse effect on the offering.
(iv) The Company shall be obligated to register Purchased Securities pursuant to this Section 9(a) only once provided that if the number of Purchased Securities requested by the Purchaser to be included in such offering and a Registration Statement requested by the related Purchaser pursuant to Section 9 (a) is cut back, the Purchaser shall have the right, no earlier than one year following effectiveness of the first demand registration, to request a second Registration Statement to register the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersPurchased Securities not so registered.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nam Corp), Stock Purchase Agreement (Insurance Services Office Inc)
Demand Registration. (ia) If At any time after one or more Holders that own an aggregate of 51% or more hundred eighty (180) days after the effective date of the Registrable Securities then outstanding registration statement for the IPO of the Company’s Common Stock, either Investor (the “Demanding HoldersInitiating Holder”) shall at any time make a written request to the Company, may notify the Company shall that it intends to offer or cause there to be 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 2.7) offered for public sale all or any portion of its Registrable Securities in the manner specified in such number request. Upon receipt of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesrequest, the Company shall promptly give written deliver notice of such proposed registration request to all Holders. Any such Holder may, within twenty other holders of Registrable Securities who shall then have ten (2010) days after receipt of such notice, request to notify the Company in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, their desire to be included in the such registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorscontemplates an underwritten public offering, the Company shall file a Registration Statement on Form S-3 with respect 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 in the underwritten public offering to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant extent provided herein. The Company will use reasonable best efforts to Section 2(i) expeditiously effect (and include but in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective any event no later than ninety (90) days after such request) the date registration of filing of all Registrable Securities whose holders request participation in such Registration Statement (or amendment). Notwithstanding registration under the foregoingSecurities Act, but only to the extent provided for in this Agreement; provided however, that the Company shall use its commercially reasonable efforts not be required to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any effect registration pursuant to a request under this Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise)1) more than three (3) times for each Investor, or (2) if the Registrable Securities proposed to be included in such registration are expected to have an agented offeringaggregate sale price (net underwriting discounts and commissions, if any) less than $50,000,000. Notwithstanding anything to the Majority Selling Holderscontrary contained herein, or no request may be made under this Section 2 within one hundred twenty (120) days after the Initiating Substantial Holder, as effective date of a registration statement filed by the case may be, 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 right registration statement relating to select such registration has been declared effective by the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offeringCommission; provided, provided however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders participating Investors holding at least a majority of the Registrable Securities proposed being registered by all participating Investors (a “Participating Majority”) or (ii) the Initiating Holder, only to be sold therein by them, shall decide which class the extent no such Investor holds a majority of the Registrable Securities shall be included therein being registered by all participating Investors, may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a Participating Majority (or Initiating Holder, as applicable) may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to request that the Company file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) If a requested registration involves an underwritten public offering and the related registration, and managing underwriter of such offering determines in good faith that the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount number of securities requested sought to be offered should be limited due to market conditions, then the number of securities to be included in such underwritten public offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included 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 offering and securities in the related registrationregistration 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 extent registration statement, (iii) securities to be registered by the Company pursuant to such registration statement, (iv) Registrable Securities of the amount which can be sold within such price rangeManagement Stockholders, and (vi) Registrable Securities of the Investors. If there is a reduction of the number of Registrable Securities pursuant to clauses (v) or (vi), such reduction shall be made on a pro rata basis among (based upon the aggregate number of Registrable Securities held by such holders).
(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 (i) the Participating Majority or (ii) the Initiating Holder, only to the extent no such Investor holds a majority of the Registrable Securities being registered by all Selling Holdersparticipating Investors (which approval will not be unreasonably withheld or delayed).
Appears in 2 contracts
Sources: Registration Rights Agreement (Intapp, Inc.), Registration Rights Agreement (Intapp, Inc.)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request Subject to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements conditions of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make FS receives a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in from JL that FS file a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 statement under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to covering the attention registration of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration all or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 AgreementRegistrable Securities, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company then FS shall use its commercially reasonable efforts to meet effect, as soon as practicable, the requirements registration under the Securities Act of Form S-3 for so long as any all Registrable Securities remain outstanding that it has requested to be registered (such request to include the number of Registrable Securities sought to be included and the intended method or methods of distribution of such Registrable Securities), subject to and in accordance with the terms, conditions, procedures, and limitations contained in this Agreement. JL may at any time prior to the effective date of the registration statement relating to a requested registration under no circumstances shall this Section 2.1 revoke its request by providing written notice to FS, in which case the Company Registration Expenses will be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under borne in accordance with Section 2.22.4.
2.6. If any registration pursuant (b) FS shall not be required 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: 2.1:
(i) if such Selling Holders have requested the inclusion therein of more than after FS has effected one class of Registrable Securitiesregistration pursuant to this Section 2.1, provided, however, that a registration shall not count as having been effected unless and until it has become effective, and unless and until JL shall have had the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in opportunity to register and sell 100% of its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed initially requested to be sold therein registered pursuant thereto, except that a registration the request for which has been revoked by them, JL shall decide count as having been effected unless the revocation is based upon material adverse information concerning the business or financial condition of FS of which class JL was not aware at the time of Registrable Securities shall be included therein in such offering and the related its request for registration, and the other class shall be excluded; and ;
(ii) if during the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, period starting with the amount date of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price rangefiling of, and ending on the date 90 days following the effective date of, a pro rata basis among all Selling Holdersregistration statement pertaining to any underwritten public offering in which JL was given the opportunity to participate pursuant to Section 2.2; provided that FS uses commercially reasonable efforts to cause such registration statement to become effective; or
(iii) during any period when FS is not eligible to use Form S-3 to register the Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (National Patent Development Corp), Registration Rights Agreement (Five Star Products Inc)
Demand Registration. (ia) If one At any time prior to such time as the rights under this Section 2 terminate with respect to a Holder as provided in Section 2(e) hereof, upon written notice from such Holder in the manner set forth herein requesting that the Company effect the registration under the Securities Act of any or more Holders that own an aggregate of 51% or more all of the Registrable Securities 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 successor rule to similar effect) promulgated under the Securities Act, if (x) the Company is then outstanding eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering and (y) the “Demanding Holders”Company consents to such an offering (except that no consent of the Company 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, exchange or conversion of Exchangeable Securities as contemplated by Section 6 hereof)), provided that:
(i) shall if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), the Holder or Holders making such request 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 any the time make a written request to and on the terms requested would materially and adversely affect the offering that is contemplated by the Company, the Company shall cause there not be required to be filed with the Commission effect 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six 2(a) (6a "Transactional Deferral") months prior to until the date earliest of (A) the abandonment of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective offering by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify (B) 60 days after receipt by the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence Holder or Holders requesting registration of the managing underwriter, if any's written opinion referred to above in this clause (i), that 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 Transfer or Registrable Securities contemplated thereby would materially interfere withday on which the restrictions on the Holders contained in Section 10 hereof lapse, 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 be permitted to delay a requested registration in reliance on this clause (i) more than once in any 12-month period;
(ii) if, while a registration request is pending pursuant to this Section 2.1(ii) 2(a), the Company determines, following consultation with and receiving advice from its legal counsel, that the filing of any other Demand Registration a registration statement otherwise required to be prepared would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and filed pursuant to this Section 2.1 during the 24 month period ended disclosure of which the Company determines reasonably and in good faith would have a material adverse effect on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesCompany, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, not be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 2(a) until the earlier of (A) the date upon which such material information is suspended orotherwise 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 file a registration statement relating to a registration request pursuant to this Section 2: (A) prior to the first anniversary of the closing of the Public Offering, (B) within a period of 365 calendar days after the effective date of 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 3 4 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 Demand Registrationregistration request by Zapa▇▇ ▇▇ any Permitted Transferee that has acquired, postponed as permitted by Section 2.1(ii)in the transaction in which it became a Permitted Transferee, at least a majority of the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no then issued and outstanding Voting Stock, on more than three Demand Registrations and 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, there shall be no limit to the number of Shelf Registrations occasions on which Zapa▇▇ ▇▇ such Permitted Transferee may exercise such rights other than as may be necessary expressly set forth herein), 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 provide each and every Substantial the contrary:
(i) a registration requested by a Holder with the right pursuant to request one Shelf Registration. For purposes of the preceding sentence, registration this Section 2 shall not be deemed to have been effected (iand, therefore, not requested for purposes of Section 2(a)), (A) unless a the registration statement with respect thereto filed in connection therewith has become effective, (iiB) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by it becomes subject to any stop order, or there is issued an injunction or other order or requirement decree of the Commission SEC or other governmental agency or court for any reason not attributable 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 Selling Holders and such interference is not thereafter eliminated, completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement or (iiiC) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement 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 some act, misrepresentation or omission by the Company and are not waived by the purchasers or underwriters; and
(ii) nothing herein shall have complied modify a Holder's obligation to pay Registration Expenses, in accordance with its obligations under this AgreementSection 4 hereof, a right to demand a 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 be deemed to have been satisfied (i) if a Demand Registrationinvolve, upon in whole or in part, an underwritten offering, Holders owning at least 50.1% of the earlier of (x) the date as of which all Fair Market Value of the Registrable Securities included therein to be registered in connection with such offering shall have been disposed 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 Registration Statement, and (y) extent the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order managing underwriter or similar order, or proceedings other independent marketing agent for such an orderoffering (if any) determines that, is thereafter entered or initiated.
2.5. A registration pursuant in its opinion, the additional securities proposed to this Section 2 shall be on Form S-3 sold will not materially and permit adversely affect the disposition offering and sale of the Registrable Securities to be registered in accordance with the intended method or methods of disposition specified then contemplated by such Holder. The rights of a Holder to cause the registration of additional Registrable Securities held by such Holder in the request any registration of Registrable Securities requested by another Holder pursuant to Section 2.1(i2(a) or shall be governed by the agreement of the Holders with respect thereto as provided in Section 2.2, respectively. 11(a).
(e) The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is shall not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 registration statement relating to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration request by a Holder pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if from and after such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each time as such Selling Holder in writing that, in its opinion, the inclusion of more than one class of first owns Registrable Securities would adversely affect representing (assuming for this purpose the conversion, exchange or exercise of all Registrable Securities then owned by 5 such offering, the Demanding Holders holding at least a majority Holder that are convertible into or exercisable or exchangeable for Voting Stock of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (iiCompany) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent less than 10% of the amount which can be sold within such price range, then issued and on a pro rata basis among all Selling Holdersoutstanding Voting Stock of the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Zap Com Corp), Registration Rights Agreement (Zap Com Corp)
Demand Registration. The Company agrees that at the Company's sole expense, Company shall, (i) If one no later than thirty (30) days following a written demand from the Warrant Holder or more Holders that own an aggregate the holder of 51% or more Warrant Shares for registration, file on its behalf and on behalf of the Registrable Securities then outstanding (Warrant Holder or the “Demanding Holders”) shall at any time make a written request holder of Warrant Shares with respect to the Company, the Company shall cause there to be filed with the Commission Warrant Shares specified in such demand 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant Act; and (ii) use its commercially reasonable efforts to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities cause such Registration Statement to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with declared effective by the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon thereafter as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations prepare, file and such number of Shelf Registrations as may cause to become effective only one (1) Registration Statement pursuant to this Section 11(d) (which Registration Statement shall be necessary in addition to provide each and every Substantial Holder with any filed under Section 11(c)). The registration required to be effected by the right Company pursuant to request one Shelf Registration. For purposes of the preceding sentence, registration Section 11(c) or this Section 11(d) shall not be deemed to have been effected (i) unless even though a registration statement Registration Statement with respect thereto has become effectiveeffective (1) if, (ii) if after such registration statement it has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction injunction, or other order or requirement of the Commission or other governmental agency or court court, for any reason not attributable to the Selling Holders Warrant Holder with respect to such Registration Statement, and such interference is has not thereafter eliminated, become effective or (iii2) 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 Warrant Holder with respect to such Registration Statement; provided, that this the Registrable Securities covered by Warrant Holder or the Registration Statement on Form S-1 or other form holder of Warrant Shares may not be able to make a demand for registration under this Section 5(d) (A) unless and until a registration statement filed pursuant to Section 2(i5(a) shall have expired or become ineffective or (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(iB) to a Form S-3 the extent that sales may be reasonably made pursuant to Rule 429 144 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after b the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2Warrant Holder.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: License Agreement (Cytogen Corp), License Agreement (Cytogen Corp)
Demand Registration. (ia) If one After the consummation of an IPO or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any such time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date consummation of such an IPO as is permitted by Section 10.3 with respect to a given Shareholder, upon a Shareholder's written request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by specifying the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention intended manner of the Secretary of the Company, and shall specify disposition (including the number of Registrable Securities shares of Vail Equity to be registeredsold) (a "Demand Notice"), the intended methods of disposition thereof Vail will use its best efforts to prepare and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (file with the concurrence SEC, as expeditiously as possible, a Registration Statement on an available form for which Vail then qualifies (but not including by means of the managing underwriter, if any), that such a shelf registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”Act). Any request made pursuant , which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to this Section 2.2 shall be addressed to the attention permit an underwritten public offering of some or all of the Secretary shares of the Company, Vail Equity then held by such Shareholder and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s its best efforts to cause such registration statement to become effective (a "Demand Registration").
(b) A Demand Registration will not be deemed to have the registration declared occurred until it has become effective under the Securities Act as soon as reasonably practicable(unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until which case such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not will be deemed to have been effected (i) occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail); provided, however, that if, after a registration statement with respect thereto Demand Registration has become effective, (ii) if after the offering of Vail Equity pursuant to such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder Demand Registration is interfered with prohibited by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason a court, such Demand Registration will be deemed not attributable to the Selling Holders and have occurred (unless 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 prohibition on the part sale of the Selling Holders. If the Company shall have complied with its obligations under this AgreementVail Equity is based on actions or omissions of such Shareholder, a right to demand a registration pursuant to this Section 2 shall in which case such Demand Registration will be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which occurred unless such Shareholder agrees to pay all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which reasonable out-of-pocket expenses associated with such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedregistration actually incurred by Vail).
2.5. A registration pursuant to this Section 2 (c) Vail shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company only be obligated to file a effect one Demand Registration State on per Shareholder in any form other than Form S-3 to fulfill ist obligations twelve month period under this Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offering5.1; provided, however, that each Person Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a Shareholder is requesting to be registered pursuant to this Section 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so selected shall requested to be reasonably acceptable to registered or (ii) such Demand Notice is given within six (6) months after the Companyeffective date of any other registration of any Vail Securities under the Securities Act.
2.7. Whenever (d) The managing underwriter will be selected by the Company shall effect a Shareholder requesting registration pursuant to this Section 2 in connection with an underwritten offering by 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not be unreasonably withheld. In the event there is one or more Selling Holders co-managers, the first such co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable SecuritiesRequesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersRequesting Shareholder.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc /Mo), Shareholder Agreement (Ralcorp Holdings Inc /Mo)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) Company shall at any time make receive a written request to the Company, by THL that the Company shall cause there to be filed with effect the Commission a registration statement meeting the requirements of under the Securities Act (of all or a “Demand Registration”)portion of the THL Entities' Registrable Securities, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, specifying the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1thereof, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, then the Company shall promptly give written notice of such proposed requested registration (a "THL Demand Registration") at least five days prior to the anticipated filing date of the registration statement relating to such THL Demand Registration to the Non-THL Shareholders and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities of the THL Entities which the Company has been so requested to register; and
(ii) subject to the restrictions set forth in Section 5.2, all Holdersother Registrable Securities of the same class as that to which THL's request relates for which an effective Piggyback Registration (as such term is defined in Section 5.2) request has been made; provided, that subject to Section 5.1(d) hereof, the Company shall not be obligated to effect more than six THL Demand Registrations. Any such Holder mayIn no event will the Company be required to effect more than one THL Demand Registration within any four-month period.
(b) Promptly after the expiration of the 2-day period referred to in Section 5.2(a) hereof, within twenty (20) days after receipt of such notice, request in writing that the Company will notify all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, the Shareholders to be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company THL Demand Registration (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention "Holders") of the Secretary of the Company, other Holders and shall specify the number of Registrable Securities requested to be registeredincluded therein. THL may, at any time prior to the intended methods effective date of disposition thereof and that the request is for registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a Shelf written notice to the Company revoking such request, in which case such request, so revoked, shall not be considered a THL Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any THL Demand Registration.
(d) A registration requested pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration 5.1 shall not be deemed to have been effected (i) unless a the registration statement with respect relating thereto (A) has become effectiveeffective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration have actually been sold thereunder); provided, (ii) that if after any registration statement requested pursuant to this Section 5.1 becomes effective (x) such registration statement has become effective, such registration 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 Commission SEC or other governmental agency or court for any reason and (y) less than 75% of the Registrable Securities included in such registration statement has been sold thereunder, such registration statement shall not attributable to the Selling Holders and such interference is not thereafter eliminatedbe considered a THL Demand Registration, or (iiiii) if the conditions Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(e) such that less than 66 2/3% of the Registrable Securities of the THL Entities sought to closing specified be included in the underwriting agreement, if any, entered into in connection with such registration are included.
(e) If a THL Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and THL that, in its view, (i) the number of shares of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not satisfied Registrable Securities) or waived(ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which 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 will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested by THL to be registered and all Registrable Securities requested to be included in such registration by any other than by reason of a failure Holder pursuant to an effective Piggyback Registration request (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the THL Entities and such Holders on the part basis of the Selling Holdersrelative number of Registrable Securities held by such Shareholder); and
(B) second, any securities proposed to be registered by the Company. If provided, however, that in such case, any Holder may elect to withdraw such Holder's Registrable Securities from the registration.
(f) Upon written notice to THL, the Company shall have complied with its obligations under this Agreement, a right to demand may postpone effecting a registration pursuant to this Section 2 shall 5.1 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be deemed to have been satisfied extended or renewed), if (i) if an investment banking firm of recognized national standing shall advise the Company and THL in writing that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company has a bona fide business reason for determining that it is in possession of material non-public information the disclosure of which during the period specified in such notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected two Demand Registrations pursuant to this Section 5.1 of Common Stock, the Institutional Shareholders, upon request of such Institutional Shareholders owning a majority of the Shares acquired by such Institutional Shareholders on the Closing Date, may request that the Company register shares of Registrable Securities then owned by such Institutional Shareholders (an "Institutional Shareholder Demand Registration"). In no event will the Company be required to effect more than one such Institutional Shareholder Demand Registration. The provisions of this Article 5 shall apply, upon mutatis mutandis, to any such Institutional Shareholder Demand Registration.
(h) After the earlier Transfer of (x) the date as Shares of which all Common Stock representing more than 20% of the Shares collectively owned by the Equity Investors of the Initial Ownership on a Fully Diluted basis owned by such Equity Investors, the Primary Executives may request that the Company register Shares which are Registrable Securities included therein then owned by them (a "Primary Executive Demand Registration"). In no event will the Company be required to effect more than three such Primary Executive Demand Registrations. The provisions of this Article 5 shall have been disposed of pursuant apply, mutatis mutandis, to any such Primary Executive Demand Registration; provided, that, notwithstanding anything to the Registration Statementcontrary herein, and (yi) no Primary Executive Demand Registrations may be made during the six month period following the Effective Time or within six months after the effective date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy any other registration statement (270) daysother than registration statement on From S-4 or S-8 or similar form), and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission must use its best efforts to effect such Primary Executive Demand Registration as soon as practicable, but in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not no event later than five (5) business 120 days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after following the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2demand.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Investors' Agreement (Fisher Scientific International Inc), Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Demand Registration. (ia) If one If, on or more at any time after the Effectiveness Date there is no currently effective Shelf Registration Statement, then at any time thereafter, upon written notice (a “Demand”) from a Holder or Holders that own an aggregate of 51holding at least 50% or more of the Registrable Securities then outstanding (collectively, the “Demanding HoldersDemand Holder”) shall at any time make a written request to the Company, requesting that the Company shall cause there to be filed with effect the Commission a registration statement meeting under the requirements 1933 Act of any or all of the Registrable Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective held by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the CompanyDemand Holder, and which notice shall specify the number of Registrable Securities to be registered, the amount and intended method or methods of disposition thereof and that the request is for a Demand Registration of such Registrable Securities, including pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration a shelf 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to utilizing Rule 415 under the Securities Act (a “Shelf Registration”). Any , the Company shall, within five days after receiving the Demand, give written notice (the “Request Notice”) of such registration request made to all other Holders, except if all the Registrable Securities are held by a single Holder, no Request Notice shall be required, and thereupon will, subject to the limitations set forth in Section 2.02(c), as promptly as possible (and in any event no later than 30 days after the date of the Demand), file and use its reasonable best efforts to cause to be declared effective under the 1933 Act, a Registration Statement to effect the registration under the 1933 Act of (i) such Registrable Securities which the Company has been so requested to register by the Demand Holder under the Demand and (ii) the Registrable Securities which the Company has been requested to register by written request to the Company by the Holders within ten days after the giving of the Request Notice (which request shall specify the amount and intended method or methods of disposition of such Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended method(s) thereof as aforesaid) of the Registrable Securities and such other securities so to be registered.
(b) A registration requested pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall 2.02 will not be deemed to have been effected unless: (i) unless it has been declared effective by the SEC or has otherwise become effective under the 1933 Act and remains effective for not less than 180 days, or, if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or underwriters is required by law for the delivery of a registration statement Prospectus in connection with respect thereto has become effective, the sale of Registrable Securities by an underwriter or dealer; or (ii) if after such registration statement it has become effective, such registration been filed with the SEC but abandoned or withdrawn at the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement request of the Commission or other governmental agency or court for any reason not attributable Demand Holder prior 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 waivedeffectiveness, other than by reason an abandonment or withdrawal requested because of: (A) the stock price of the Common Stock falling 15% or more since the delivery 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 request for registration pursuant to this Section 2 shall be deemed 2.02, (B) a material adverse change in the Company’s and the Subsidiaries’ financial condition, business, assets, results of operations financial condition, taken as a whole, or (D) the discovery of materially adverse, non-public information concerning the Company and the Subsidiaries, taken as a whole.
(c) Notwithstanding anything in this Agreement to have been satisfied the contrary:
(i) if the filing of a Registration Statement in respect of a Demand Registrationwould require the Company to make an Adverse Disclosure, the Company may, upon the earlier giving prompt written notice of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant such action to the Holders, delay the filing of such Registration StatementStatement for the shortest period of time determined in good faith by the Company to be necessary for such purpose; provided that the Company shall not be permitted to do so (A) more than two times during any twenty-four month period, and (yB) the date as of which such Demand Registration shall have been Continuously Effective for a period not exceeding 40 days on any one occasion or (C) for a period exceeding 60 days in any 12 month period. The Company shall immediately notify the Holders of two hundred seventy (270) days, and the expiration of any period during which it exercised its rights under this Section 2.02(c)(i);
(ii) if the Company shall not be obligated to file a Shelf Registration, upon Registration Statement in respect of a Demand (A) on more than two occasions or (B) within a period of one (1) month after the effective date of any other Registration Statement of the Company demanded pursuant to this Section 2.02;
(iii) a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A Holder may elect to withdraw its Registrable Securities from a Demand registration pursuant to this Section 2 2.02 at any time, and if all such Holders do so, the Company shall cease its efforts to secure registration; and
(iv) all Demand registrations pursuant to this Section 2.02 shall be on Form S-3 S−3, except 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, reasonably acceptable to the Holders of a majority of the Registrable Securities, and as shall permit the disposition of the Registrable Securities in accordance with the intended method of distribution or methods of disposition distribution specified in the applicable Demand Holder’s requests for such registration.
(d) Nothing in this Agreement shall limit the right of any Holder to request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed issuable upon exercise of the Warrants by such Holder (subject to be sold therein by them, shall decide which class such exercise occurring prior to the completion of the sale of the underlying Registrable Securities shall be included therein in prior to such offering and registration), notwithstanding the related registration, and fact that at the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent time of the amount which can be sold within request such price range, and on a pro rata basis among all Selling HoldersHolder Warrants are not Registrable Securities.
Appears in 2 contracts
Sources: Investor Rights Agreement (Hoku Scientific Inc), Investor Rights Agreement (Tianwei New Energy Holdings Co., LTD)
Demand Registration. (a) If the Company shall be requested in writing by Holder to effect the registration under the Securities Act of any of the Registration Stock, the Company, subject to the limitations set forth in subsection 3(b), shall effect as soon as practicable after the receipt of such request, the registration under the Act of all Registration Stock which Holder so requests to be registered.
(i) If one or more Holders that own Holder intends to distribute the Registration Stock covered by its request by means of an aggregate underwriting, it shall so advise the Company as a part of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) its request made pursuant to this subsection 3(a). The managing underwriter will be selected by Holder and shall at any time make a written request be reasonably acceptable to the Company. In such event, Holder shall (together with the Company as provided in subsection 4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(ii) Notwithstanding the foregoing, the Company shall cause there to be filed with the Commission may include in a registration statement meeting the requirements requested under this subsection 3(a) any additional authorized shares of the Securities Act (a “Demand Registration”)Common Stock, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all whether or such number of such Demanding Holder’s Registered Sharesnot issued, as for sale by the Demanding Holder shall report in writingCompany or for sale by others; provided, however, that no request may such shares shall not be made pursuant to this Section 2.1 if within six (6) months prior included to the date extent that the managing underwriter chosen in accordance with subsection (i) above concludes in good faith that the inclusion of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by shares will interfere with the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention successful marketing of the Secretary shares of the Company, and shall specify the number of Registrable Securities Registration Stock to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i)included therein.
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness Company shall furnish to Holder a certificate signed by the Chief Executive Officer or the Chief Financial Officer of a registration pursuant to this Section 2 is suspended or, the Company stating that in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes good faith judgment of the preceding sentenceBoard of Directors of the Company, registration shall not it would be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after detrimental for such registration statement has become effectiveto be filed or would require the Company to make public disclosure of information the premature disclosure of which would have an adverse effect on the Company, and it is therefore beneficial to the Company to defer the filing of such registration statement (or the related offerintended sale of Registration Stock pursuant to a then effective registration statement), sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the 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 the right to demand a registration pursuant defer taking action with respect to this Section 2 shall be deemed to have been satisfied (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar orderfiling, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant require Holder to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligiblerefrain from selling Registration Stock, as the case may be, and thereafter to maintain its eligibility, for the use a period of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(imore than one hundred twenty (120) the days.
(b) The Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise)effect, or an agented offeringto take any action to effect, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a any registration pursuant to this Section 2 3:
(i) After the Company has effected one registration pursuant to this Section 3 in the previous twelve (12) months and such registration has been declared or ordered effective; or
(ii) During the period beginning on a date thirty (30) days prior to the Company's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration of Common Stock or other securities of the Company under the Act in connection with an underwritten a public offering by one of such securities (other than a registration relating solely to the sale of securities to participants in a stock option or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority other employee benefits plan of the Registrable Securities proposed Company); provided that the Company is actively employing in good faith reasonable efforts to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in cause such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested registration statement to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersbecome effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Securicor Telesciences Inc), Registration Rights Agreement (Axiom Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more At any time after the expiration of the Registrable Securities then outstanding transfer restrictions contained in Section 2.1(a), so long as the Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Shareholder (the “Demanding Holders”a "Requesting Shareholder") shall at any time be entitled to make a written request to the Company, of the Company shall cause there to be filed with the Commission (a "Demand") for registration statement meeting the requirements of under the Securities Act of an amount of Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Shareholder's Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify based on the number of Registrable Securities outstanding on the date such Demand is made) (a "Demand Registration") and thereupon the Company will, subject to be registeredthe terms of this Agreement, use its commercially reasonable efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities that the Company has been so requested to register by the Requesting Shareholders for disposition in accordance with the intended methods method of disposition thereof and stated in such Demand;
(ii) all other Registrable Securities that the request is for a Demand Registration Company has been requested to register pursuant to Section 5.1(b); and
(iii) all Common Shares that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 2.1(i5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) The Company shall be entitled the intended method of disposition in connection with such Demand Registration, to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared extent then known and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant identity of the Requesting Shareholder (or Requesting Shareholders). Subject to Section 2.1(i) to effect the registration of any Registrable Shares5.1(g), the Company shall promptly give include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written notice of such proposed registration to all Holders. Any such Holder may, request for inclusion therein within twenty ten (2010) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registrationinitial Demand.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”)c) The Shareholders, collectively, shall be entitled to have all or any number an aggregate of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act six (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a 6) Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offeringRegistrations.
(iid) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the A Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected and shall not count as a Demand (i) unless a registration statement with respect thereto has become effectiveeffective and has remained effective for a period of at least sixty (60) days (or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder), (ii) if if, after such registration statement it has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by Demand Registration becomes subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedreason, or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement entered into in connection with such registration Demand Registration are not satisfied as a consequence of any act or waived, other than omission by reason the Company or (iv) the number of Registrable Securities requested for inclusion is materially reduced pursuant to Section 5.1(g).
(e) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company.
(f) The Company shall be entitled to postpone (upon written notice to all Shareholders) for up to an aggregate of ninety (90) days during any period of twelve (12) consecutive months the filing or the effectiveness of a failure on registration statement for any Demand Registration if the part Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the Selling Holders. If registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company shall have complied with its obligations under this Agreement, has a right to demand bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if statement for a Demand Registration, upon the earlier holders of a majority of Registrable Securities held by the Requesting Shareholder(s) shall have the right to withdraw such Demand in accordance with Section 5.3.
(xg) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the date as written consent of which all Shareholders participating in such Demand Registration that hold a majority of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statementin such Demand Registration. If, and in connection with a Demand Registration, any managing underwriter (y) the date as of which or, if such Demand Registration shall have been Continuously Effective for is not an Underwritten Offering, a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed nationally recognized independent investment bank selected by the Company with Company) advises the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3Company, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorswriting, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class all of the securities, including securities of the Company that are not Registrable Securities Securities, sought to be registered in connection with such Demand Registration would adversely affect such offering, the Demanding Holders holding at least a majority marketability of the Registrable Securities proposed sought to be sold therein pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by themsuch underwriter can be sold without such adverse effect as follows and in the following order of priority: (i) first, shall decide which class up to the number of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether Demand Registration by Selling Holders or others) exceeds the amount which Shareholders, which, in the opinion of the underwriter can be sold in without adversely affecting the marketability of the offering, pro rata among such offering within a price range acceptable Shareholders requesting such Demand Registration on the basis of the number of such securities requested to the Majority Selling Holdersbe included by such Shareholders and such Shareholders that are Piggyback Sellers; (ii) second, securities shall the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such offering and registration statement, pro rata on the related registration, to the extent basis of the amount which can of such other securities requested to be sold within included or such price rangeother method determined by the Company.
(h) Any time that a Demand Registration involves an Underwritten Offering, the Company shall select the investment banker or investment bankers and on a pro rata basis among all Selling Holdersmanagers that will serve as lead and co-managing underwriters with respect to the offering of such Registrable Securities.
Appears in 2 contracts
Sources: Shareholder Agreement (Aircastle LTD), Shareholder Agreement (Aircastle LTD)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after following the date of this Agreement each Substantial and upon written notice from a Holder or Holders of at least twenty percent (20%) of the Registrable Securities (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 or all of the Registrable Securities held by such Holder as described in Section 2(b) (which notice shall make a written request to specify the Company (the “Initiating Substantial Holder”intended method or methods of disposition of such Registrable Securities), Company shall be entitled use its reasonable best efforts to have all or any number effect, in the manner set forth in Section 5, the registration under the Securities Act of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission for disposition in accordance with the Securities Act for an offering on a delayed intended method or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallstated in such request; provided that:
(i) File if, prior to receipt 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 hands” meeting with outside advisors, including an underwriter if such financing plan is an underwritten offering, and, in the registration statement with the Commission as promptly as practicable, and shall use the good faith business judgment of Company’s best efforts to have underwriter (or outside advisors, if no underwriter), a registration at the registration declared effective under time and on the Securities Act as soon as reasonably practicableterms requested could materially and adversely affect or interfere with such financing plan of Company or its subsidiaries (a “Transaction Blackout”), in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary Company shall not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 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(a), whether in reliance on this subsection (i) or on subsection (ii) below, twice during the term of this Agreement.
(ii) if, while a registration request is suspended orpending pursuant to this Section 2(a), 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 or would require the disclosure of 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 requested registration (notwithstanding its reasonable best efforts to so comply), Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such contemplated transaction is completed or abandoned or such material information is otherwise disclosed to the public or ceases to be material or Company reasonably is able to so comply with applicable SEC requirements, as the case of may be, and (B) thirty (30) days after Company makes such good-faith determination; provided that Company shall only be permitted to delay a Demand Registration, postponed as permitted by requested registration under this Section 2.1(ii2(a), whether in reliance on this subsection (ii) or on subsection (i) above, twice during the foregoing period shall be extended by the aggregate number term of days of such suspension or postponementthis Agreement.
2.4. The (iii) Company shall not be obligated to effect no file more than three Demand Registrations two (2) registration statements under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any event if such a registration request is for a number of Shelf Registrations as may Registrable Securities which have an aggregate market value less than $1 million. If such a request shall be necessary 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) Notwithstanding any other provision of this Agreement to provide each and every Substantial the contrary, a registration requested by a Holder with the right pursuant to request one Shelf Registration. For purposes of the preceding sentence, registration this Section 2 shall not be deemed to have been effected (iand, therefore, not requested for purposes of Section 2(a)): (A) unless a if it is withdrawn by the requesting Holder based upon material adverse information relating to Company that is (x) different from the information known to the Holder or Holders requesting registration statement with respect thereto has become at the time of their request for registration, or (y) promptly disclosed by Company to the Holder at the time of their request for registration; (B) if, when effective, it includes fewer than ninety (ii90%) percent of the number of shares of Registrable Securities which were the subject matter of the request; (C) if after it has become effective such registration statement has become effective, such registration 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 Commission SEC or other governmental agency or court for any reason not attributable 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 Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified plan of distribution set forth in the underwriting agreement, if any, entered into in connection with such related registration are not satisfied or waived, other than by reason of a failure on statement.
(c) In the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a event that any registration pursuant to this Section 2 shall be deemed involve, in whole or in part, an underwritten offering, Company shall have the right to have been satisfied (i) if a Demand Registrationdesignate the underwriter or underwriters, upon including the earlier lead managing underwriter of (x) such underwritten offering, subject to the date as of which all reasonable approval 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedHolders.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit (d) Holders other than the disposition of Holder initiating the Registrable Securities in accordance with the intended method or methods of disposition specified in the request demand pursuant to Section 2.1(i2(a) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company and holders of other registrable securities with the Commission right to participate in a timely manner so as Company registration statement shall have the right to remain eligible include their shares of Registrable Securities or become eligibleother registrable securities, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves 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 (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holderslead 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 Initiating Substantial Holder, as Holders and the case may be, 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) Company shall have the right to select cause the underwriter or underwriters and manager or managers registration of additional securities for sale for the account of Company in any registration of Registrable Securities requested by a Holder pursuant to administer such Section 2(a) which involves an underwritten offering or the placement agent or agents for such agented offering; provided, however, provided that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect not have the right to cause the registration of such additional securities if such Holder is advised in writing (with a registration copy to Company) by the lead managing underwriter designated pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i2(c) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its such firm’s good faith opinion, the inclusion registration of more than one class of Registrable Securities such securities in addition to those securities included pursuant to Sections 2(a)-(d) hereof would materially adversely affect such offering, the Demanding Holders holding at least a majority offering and sale of the Registrable Securities proposed to be sold therein then contemplated by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement (RS Properties I LLC), Registration Rights Agreement (Sands Brothers Venture Capital Ii LLLC)
Demand Registration. (ia) If one Request by the Investor. Subject to the terms of this ARTICLE IV, for so long as the Investor beneficially owns a number of Common Stock (including Common Stock issuable upon conversion of the Preferred Stock) that, in aggregate, is equal to at least five percent (5%) of the outstanding shares of Common Stock of the Company, the Investor may by written notice to the Company (a “Demand Notice”) request the Company to effect the Registration of all or more Holders that own an aggregate of 51% or more part of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective owned by the CommissionInvestor. Any Each request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall must specify the number of Registrable Securities to be registered, for which registration is requested and the intended method or methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 distribution thereof. Upon receipt of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharesrequest, the Company shall promptly give written notice of as soon as practicable cause the Registrable Securities specified in such proposed registration Demand Notice to all Holders. Any be Registered and/or qualified for sale and distribution in such Holder mayjurisdictions as the Investor may reasonably request, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company extent necessary to permit the disposition (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”intended methods as aforesaid). Any request made pursuant The Company shall use its reasonable best efforts to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities cause such Registration and/or qualification to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission complete as promptly soon as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicablebut in no event later than ninety (90) days, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as after receipt of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4Notice. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with one (1) Registration requested by the right to request one Shelf Registration. For purposes of the preceding sentence, registration Investor during any twelve-month period; provided that a Registration shall not be deemed to have been effected under this Section 4.1 if (i) unless a registration statement with respect thereto has become effective, less than all Registrable Securities set forth in such Demand Notice are Registered in such Registration or (ii) if after prior to the sale of all of the Registrable Securities included in the applicable registration relating to such registration statement has become effectiverequest, such registration or the related offer, sale or distribution of Registrable Securities thereunder Registration is interfered with adversely affected by any stop order, injunction or other order or requirement of the Commission (other than any such stop order, injunction, or other governmental agency or court 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 requirement 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all Commission prompted by act or omission 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectivelyInvestor). The Company Investor acknowledges and agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If that the Company is not eligible at any time after the date hereof to use Form S-3, current in order to fulfill its reporting obligations under Section 2(i) the U.S. Securities Laws and that it will not be able to effect a Registration while the Company shall file a Registration Statement on Form S-1 or other appropriate form and is not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include current in such Registration Statement on Form S-3 the information required by Rule 429 its reporting obligations under the U.S. Securities Act) or convert the Registration Statement on Form S-1 or other formLaws, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, provided that the Company shall use its commercially reasonable best efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist become current in its reporting obligations under Section 2.2the U.S. Securities Laws as soon as practicable.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 2 contracts
Sources: Investor Rights Agreement (Weichai America Corp.), Investor Rights Agreement (Power Solutions International, Inc.)
Demand Registration. (ia) If one at any time following the IPO, the Company shall receive a written request (a “Demand Notice”) from the Equity Committee that the Company effect the registration under the Securities Act of all or more Holders that own an aggregate of 51% or more any portion of the Registrable Securities then outstanding (specified in the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act Demand Notice (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with specifying the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2thereof, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts to meet effect, as expeditiously as reasonably practicable, subject to the requirements restrictions in Section 2.2(d), the registration under the Securities Act of Form S-3 for so long as any the Registrable Securities remain outstanding for which the Equity Committee has requested registration under this Section 2.2, 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. Notwithstanding the foregoing, (i) the Equity Committee shall be entitled to ten Demand Registrations pursuant to this Section 2.2, (ii) the Equity Committee shall be entitled to no more than one demand registration during any six-month period, and under no circumstances shall (iii) the Company shall not be obligated to file make a Demand Registration State on any form other than Form S-3 with respect to fulfill ist obligations under Section 2.2the Equity Committee in the event that a Fifth Anniversary Registration or Piggyback Registration (as defined below) had been available to the Equity Committee within the 180 days preceding the date of the Demand Notice.
2.6(b) At any time prior to the effective date of the registration statement relating to such registration, the Equity Committee may revoke such Demand Registration request by providing a notice to the Company revoking such request. The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration.
(c) If any registration pursuant to Section 2 a Demand Registration involves an underwritten offering Public Offering and the managing underwriter advises the Company and the Equity Committee that, in its view, the number of shares of Registrable Securities requested to be included in such registration 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 (whether on a the “firmMaximum Offering Size”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Equity Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Covered Persons whose Registrable Securities are included in the Demand Registration on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each);
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other persons, with such priorities among them as the Company shall determine.
(d) Upon notice to the Demand Requesting Covered Person, the Company may postpone effecting a registration pursuant to this Section 2 2.2 on one occasion during any period of six consecutive months for a reasonable time specified in connection with an underwritten offering by one the notice but not exceeding 120 days (which period may not be extended or more Selling Holders of Registrable Securities: renewed), if (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, Company shall determine in good faith that effecting the registration would materially and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect an offering of securities of such offering, company the Demanding Holders holding at least a majority preparation of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and had then been commenced or (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder Company is in writing that, in its opinion, possession of material non-public information the amount disclosure of securities requested to be included which during the period specified in such offering (whether by Selling Holders or others) exceeds notice the amount which can Company believes in good faith would not be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent best interests of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersCompany.
Appears in 2 contracts
Sources: Registration Rights Agreement (Evercore Partners Inc.), Registration Rights Agreement (Evercore Partners Inc.)
Demand Registration. (ia) If one One or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) Requesting Shareholders shall at any time be entitled to make a written request to the Company, of the Company shall cause there to be filed with the Commission (a “Demand”) for registration statement meeting the requirements of under the Securities Act of an amount of Registrable Securities that, in the aggregate taking into account all of the Requesting Shareholders, equals or is greater than the Registrable Amount (a “Demand Registration”)) and thereupon the Company will, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) all or such number the offer and sale of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant Registrable Securities which the Company has been so requested to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective register by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, Requesting Shareholders for disposition in accordance with the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).stated in such Demand;
(ii) The all other Registrable Securities which the Company shall be entitled has been requested to postpone for up register pursuant to one hundred twenty Section 2.1(b); and
(120iii) days all equity securities of the filing Company which the Company may elect to register in connection with any offering of any Demand Registration statement otherwise required to be prepared and filed Registrable Securities pursuant to this Section 2.1, if ; all to the Board determines, extent necessary to permit the disposition (in its good faith reasonable judgment (accordance with the concurrence intended methods thereof) of the managing underwriterRegistrable Securities and the additional Shares, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i)so registered.
(b) Each Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, if then known and (iii) Whenever the Company shall have received identity of the Requesting Shareholder (or Requesting Shareholders). Within five (5) business days after receipt of a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesDemand, the Company shall promptly give written notice of such proposed registration Demand to all Holdersother Shareholders, if any. Any Subject to Section 2.1(h), the Company shall include in the Demand Registration covered by such Holder may, Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within twenty ten (2010) days after receipt the Company’s notice required by this paragraph has been mailed. Such written request shall comply with the requirements of such noticea Demand as set forth in this Section 2.1(b).
(c) Demand Registrations shall be on (i) if option (ii) and (iii) below are not available, request in writing that all of such Holder’s Registrable Shares, Form S-1 or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company similar long-form registration (the “Initiating Substantial HolderLong-Form Registration”), shall be entitled to have all (ii) if option (iii) below is not available, Form S-3 or any number similar short form registration, if such short form registration is then available to the Company, or (iii) Form S-3ASR if the Company is, at the time a Demand is made, a Well-Known Seasoned Issuer (a Demand Registration under each of such Initiating Substantial Holder’s Registrable Securities included clauses (ii) and (iii), a “Short-Form Registration”), in a registration with the Commission each case, in accordance compliance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under and in the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention form of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and registration statements that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement has customarily prepared and filed with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, SEC for up to two hundred seventy (270) days or until such earlier date as issuances of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4its Shares. The Company shall not be obligated required to effect no more than three two Long-Form Registrations per fiscal year.
(d) Effective Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration A Demand Registration shall not be deemed to have been effected effected:
(i) unless a registration statement with respect thereto has become effective, been declared effective by the SEC and remains effective in compliance with the provisions of the Securities Act and the laws of any U.S. state or other jurisdiction applicable to the disposition of Registrable Securities covered by such registration statement until such time as all of such Registrable Securities shall have been disposed of in accordance with such registration statement or there shall cease to be any Registrable Securities;
(ii) if if, after such registration statement it has become effective, such registration 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 Commission SEC or other governmental agency Governmental Entities or court for any reason not attributable to the other than a violation of applicable law solely by any Selling Holders Shareholder and such interference is has not thereafter eliminated, or become effective;
(iii) if if, in the case of an Underwritten Offering, the conditions to closing specified in an underwriting agreement applicable to the underwriting agreement, if any, entered into in connection with such registration Company are not satisfied or waived, waived other than by reason of a any breach or failure on the part of the by any Selling Holders. If Shareholder; or
(iv) if the Company shall have complied with its obligations effects a postponement, declares a Suspension Period or similarly delays the exercise of rights under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of Agreement pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified terms in the request pursuant to Section 2.1(i) paragraph below or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use terms of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment)this Agreement generally. Notwithstanding the foregoing, the Company shall not be obligated to (i) maintain the effectiveness of a Long-Form Registration, filed pursuant to a Demand Registration, for a period longer than 75 days or (ii) effect any Demand Registration (A) within six (6) months of the effective date of a registration statement with respect to a “firm commitment” Underwritten Offering in which all Piggyback Sellers were given “piggyback” rights pursuant to Section 2.2 (and at least 50% of the number of Registrable Securities requested by such Piggyback Sellers to be included in such Demand Registration were included), (B) within three (3) months of the effective date of a registration statement with respect to any other Demand Registration, (C) within 90 days from the date on which a Marketed Underwritten Offering was priced or (D) if, in the reasonable judgment of the Board, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or financial information, provided that the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long obtain such financial statements or financial information as any Registrable Securities remain outstanding and under no circumstances shall promptly as practicable. In addition, the Company shall be obligated entitled to file a Registration State on any form other than Form S-3 postpone (upon written notice to fulfill ist obligations under Section 2.2.
2.6. 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, Shareholders) the Majority Selling Holders, filing or the Initiating Substantial Holdereffectiveness of a registration statement for any Demand Registration (but no more than twice in any period of twelve (12) consecutive months and in no event for more than an aggregate of one-hundred twenty (120) days in any three-hundred sixty-five (365) consecutive day period) if the Board determines in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as the case may beconfidential, 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; provided, however, that each Person so selected such postponement shall be reasonably acceptable to the Company.
2.7. Whenever terminate at such time that such information is no longer material, non-public information or the Company shall effect no longer has a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if bona fide business purpose for preserving such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersinformation as confidential.
Appears in 2 contracts
Sources: Registration Rights Agreement (Apollo Management Holdings GP, LLC), Transaction Agreement (Apollo Global Management, Inc.)
Demand Registration. (ia) If one After the consummation of an IPO or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any such time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date consummation of such an IPO as is permitted by Section 10.3 with respect to a given Shareholder, upon a Shareholder's written request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by specifying the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention intended manner of the Secretary of the Company, and shall specify disposition (including the number of Registrable Securities shares of Vail Equity to be registeredsold) (a "Demand Notice"), the intended methods of disposition thereof Vail will use its best efforts to prepare and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (file with the concurrence SEC, as expeditiously as possible, a Registration Statement on an available form for which Vail then qualifies (but not including by means of the managing underwriter, if any), that such a shelf registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”Act). Any request made pursuant , which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to this Section 2.2 shall be addressed to the attention permit an underwritten public offering of some or all of the Secretary shares of the Company, Vail Equity then held by such Shareholder and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s its best efforts to cause such registration statement to become effective (a "Demand Registration").
(b) A Demand Registration will not be deemed to have the registration declared occurred until it has become effective under the Securities Act as soon as reasonably practicable(unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until which case such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not will be deemed to have been effected (i) occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail); provided, however, that if, after a registration statement with respect thereto Demand Registration has become effective, (ii) if after the offering of Vail Equity pursuant to such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder Demand Registration is interfered with prohibited by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason a court, such Demand Registration will be deemed not attributable to the Selling Holders and have occurred (unless 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 prohibition on the part sale of the Selling Holders. If the Company shall have complied with its obligations under this AgreementVail Equity is based on actions or omissions of such Shareholder, a right to demand a registration pursuant to this Section 2 shall in which case such Demand Registration will be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which occurred unless such Shareholder agrees to pay all of the Registrable Securities included therein shall have been disposed of pursuant to the Registration Statement, and (y) the date as of which reasonable out-of-pocket expenses associated with such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedregistration actually incurred by Vail).
2.5. A registration pursuant to this Section 2 (c) Vail shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company only be obligated to file a effect one Demand Registration State on per Shareholder in any form other than Form S-3 to fulfill ist obligations twelve month period under this Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offering5.1; provided, however, that each Person Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a Shareholder is requesting to be registered pursuant to this Section 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so selected shall requested to be reasonably acceptable to registered or (ii) such Demand Notice is given within six (6) months after the Companyeffective date of any other registration of any Vail Securities under the Securities Act.
2.7. Whenever (d) The managing underwriter will be selected by the Company shall effect a Shareholder requesting registration pursuant to this Section 2 in connection with an underwritten offering by 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not be unreasonably withheld. In the event there is one or more Selling Holders co-managers, the first such co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable SecuritiesRequesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Underwriters’ Representative or Agent Requesting Shareholder.
(e) In connection with a Demand Registration, both the Shareholder not requesting the Demand Registration (the "Non-Requesting Shareholder") and Vail may elect to include additional shares of Vail Securities in such offering on the same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, however, that if the managing underwriter(s) advises each such Selling Holder in writing the Requesting Shareholder, the Non-Requesting Shareholder and Vail that, in its opinionjudgment, the inclusion number of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities shares proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount largest number of Vail Securities which can be sold in without having an adverse effect on such offering within a offering, including the price range acceptable at which such securities can be sold (the "Marketable Number"), then the total number of shares to the Majority Selling Holders, securities shall be included in such offering shall be limited as follows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the related Non-Requesting Shareholder propose to sell up to the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the relative number of Vail Securities that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such registration, and (ii) second, all the shares of Vail Securities that Vail proposes to sell, which does not exceed the extent difference, if any, between the Marketable Number and that number of shares which the amount which can be sold within such price range, Requesting Shareholder and on a pro rata basis among all Selling Holdersthe Non-Requesting Shareholder have included pursuant to clauses (i) and (ii) above.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc), Shareholder Agreement (Vail Resorts Inc)
Demand Registration. If the Investor is unable to sell shares of ------------------- Common Stork within eighteen (i18) If one or more Holders that own an aggregate of 51% or more months after the end of the Registrable Restriction Period pursuant to Rule 144(k) (or a successor rule) under the Securities then outstanding (Act or on a Piggyback Registration Statement, the “Demanding Holders”) Investor shall at any time make have the right to require the Company to file one registration statement under the Securities Act on a written request Form S-3, provided such registration form is available to the 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 notice under this Section 8(b), the Company shall cause there use its best efforts to be filed with the Commission a registration statement meeting the requirements of register under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered SharesAct, as the Demanding Holder shall report in writing; providedsoon as reasonably practicable, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, shares of Common Stock specified by the intended methods of disposition thereof and that Investor in such notice (or such lesser number as the request is for a Demand Registration pursuant to this Section 2.1(i).
(iimanaging underwriter(s) The Company shall be entitled to postpone for up to one hundred twenty (120) days in such offering believes will not unduly jeopardize 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 (with the concurrence success of the managing underwriter, if anyoffering), that such registration and the Transfer or Registrable Securities 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 may delay the filing of the registration statement for as long as
(A) the request for registration pursuant to this Section 2.1(ii8(b) would require the Company to include in the registration statement on the filing of any other Demand Registration statement otherwise date or on the expected effective date audited financial statements which are not yet required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act Exchange Act; or
(a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of B) the Company, and shall specify the number 's board of Registrable Securities to be registered, the intended methods of disposition thereof and directors reasonably determines that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File disclosure required in the registration statement with or the Commission as promptly as practicable, and shall use pricing of the Company’s best efforts offering would adversely affect the Company or its ability to have the registration declared effective under the Securities Act as soon as reasonably practicable, engage in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a planned registered public offeringoffering or in any other planned activity.
(ii) Use In the Company’s best efforts to keep event that the relevant Investor makes a demand for registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii8(b), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, shall have the right to select register other shares of Common Stock in the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offeringregistration statement; provided, however, that each Person such shares shall not be included to the extent provided -------- ------- in Section 8(f) below, if applicable, and in all other situations, such shares (other than the Original Registration Stock) shall not be included to the 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 therein; provided, further, that, if the number of shares to be so selected -------- ------- included exceeds the number of the Investor's shares included therein, such registration shall be reasonably acceptable deemed to the Company.
2.7. Whenever the Company shall effect be a registration pursuant to Section 8(a) hereof.
(iii) The managing underwriter(s) for any underwritten public offering pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them8(b), shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range mutually acceptable to the Majority Selling Holders, securities shall be included in such offering Company and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersInvestor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Genvec Inc), Stock Purchase Agreement (Genvec Inc)
Demand Registration. (ia) If one At any time commencing 180 days after the ------------------- Initial Public Offering and for so long as the Company shall not be eligible to file a Registration Statement on Form F-3 (or more any successor form relating to secondary offerings), each of the Holders may request, in writing, that own the Company effect a registration on Form F-1 or Form F-2 (or any successor form) of Registrable Shares held by such Holder having an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request offering price to the Companypublic of at least $50,000,000.00. Following receipt of any notice pursuant to this Section 2, the Company shall cause there immediately notify all Holders from whom notice has not been received and shall use its best efforts to register under the Securities Act, for public sale in accordance with the method of distribution specified in such notice from the requesting Holder or Holders, the number of Registrable Shares specified in such notice (and in all notices received by the Company from other Holders within 30 days after the giving of such notice by the Company). If such method of distribution shall be an underwritten public offering, the Holder of a majority of the Registrable Shares to be filed with sold in such offering may designate the Commission managing underwriter of such offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed. If 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior 2 is, in whole or in part, an underwritten public offering, the Company shall provide such assistance with respect to the date offering as may be reasonably requested by the requesting Holders or the underwriters, including, but not limited to, causing members of the Company's senior management team to participate in "roadshow" presentations for the purpose of the marketing of the Registrable Shares to be sold by the underwriters. The Company shall not be required to effect more than one such registration at the request of each of the CGIP Group and the Floscule Group under this Section 2; provided that such -------- obligation shall be deemed satisfied only when a Demand Registration Statement covering all Registrable 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 shall have been sold pursuant thereto. The Company will use its best efforts to maintain the effectiveness for up to 90 days (or such shorter period of time as the underwriters need to complete the distribution of the registered offering) of any Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i)2.
(iib) The Company shall be entitled to postpone for up include in any Registration Statement referred to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to in this Section 2.12, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission for sale in accordance with the Securities Act method of disposition specified by the requesting Holders, Class A Common Shares to be sold by the Company for its own account; provided, that if the proposed method -------- of disposition specified by the requesting Holders shall be an underwritten public offering, the shares to be included in such an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed reduced if and to the attention extent that the managing underwriter shall be of the Secretary opinion that such inclusion would adversely affect the marketing of the Company, and shall specify the number of Registrable Securities Shares to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3sold. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallSuch reduction will be effected as follows:
(i) File First, any shares to be sold by the registration statement with the Commission as promptly as practicable, and Company shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.be reduced; and
(ii) Use Second, if all of the Company’s best efforts shares to keep be sold by the relevant registration statement Continuously Effective (x) if a Demand RegistrationCompany are excluded from the offering, for up to two hundred seventy (270) days or until such earlier date as of which all then the Registrable Securities under Shares of the Demand requesting Holders shall be reduced, such reduction to be made pro rata among the ---- requesting Holders based on the number of Registrable Shares owned by such requesting Holders. Except for registration statements on Form ▇-▇, ▇-▇ or any successor thereto, the Company will not file with the Commission any other Registration statement shall have been disposed Statement with respect to its Class A Common Shares, whether for its own account or that of in other stockholders, from the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness date of receipt of a registration notice from requesting Holders pursuant to this Section 2 is suspended or, in until the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes completion of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or period of distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2contemplated thereby.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Compagnie Generale D Industrie Et De Participations)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCommencing March 8, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of2007, 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Requesting Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall may make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request specifying that it is being made pursuant to this Section 2.2 2) that the Company file a registration statement under the 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the 1▇▇▇ ▇▇▇) covering the registration of Registrable Stock. In such event the Company shall (i) within ten (10) days thereafter notify in writing all other Holders of Registrable Stock of such request, and (ii) use commercially reasonable efforts to cause such registration statement to be prepared and filed with the Commission under the 1933 Act registering the resale of all Registrable Stock that the Requesting Holders and such other Holders have, within forty-five (45) days after the Company has given such notice, requested be registered.
(b) If the Holders intend to distribute the Registrable Stock covered by their request by means of an underwritten offering, they shall so advise the Company. All Holders proposing to distribute Registrable Stock through such underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters. Such underwriter or underwriters shall be addressed to the attention selected by a majority in interest of the Secretary of Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall specify also be made to and for the number benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Securities Stock of such Holder and such Holder’s intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock required to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration registered pursuant to this Section 2.22 advises the Holders in writing that in its opinion marketing factors require a limitation of the number of shares to be underwritten, the Holders shall so advise all Holders of Registrable Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in such underwritten offering shall be allocated among all such Holders, including the Holders, in proportion (as nearly as practicable) to the amount of Registrable Stock requested to be included in such registration by each Holder at the time of filing the registration statement; provided, that in the event of such limitation of the number of shares of Registrable Stock to be underwritten, the Holders shall be entitled to an additional demand registration pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the terms of the underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and the Holders. The securities so withdrawn shall also be withdrawn from registration.
2.3. Following receipt (d) Notwithstanding any provision of a request for a Demand Registration or a Shelf Registrationthis Agreement to the contrary, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended orduring the period starting with the fourteenth (14th) day immediately preceding the date of an anticipated filing by the Company of, and ending on a date ninety (90) days following the effective date of, a registration statement pertaining to a public offering of securities for the account of the Company; provided, that the Company shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and provided further, that the case Company’s estimate of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period date of filing such registration statement shall be extended by the aggregate number of days of such suspension or postponementmade in good faith.
2.4. (e) The Company shall be obligated to effect no more than three Demand Registrations and such number pay for a total of Shelf Registrations as may be necessary only one (1) registration pursuant to provide each and every Substantial Holder with the right this Section 2, unless increased pursuant to request one Shelf Registration. For purposes of the preceding sentenceSection 2(c) hereof; provided, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2(e), unless (i) unless a registration statement with respect thereto it has become effective, been declared effective by the Commission (ii) if after it is a shelf registration, it has remained effective for the period set forth in Section 3(b), (iii) the offering of Registrable Stock pursuant to such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by not subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the 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 any such action prompted by reason of a failure on the part any act or omission 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 (i) if a Demand 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 (yiv) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition limitation of the number of shares of Registrable Securities in accordance with the intended method or methods of disposition specified in the request Stock to be underwritten has been required pursuant to Section 2.1(i2(c) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2hereof.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Digifonica International Corp)
Demand Registration. (ia) If In addition to Section 10.01, the Majority Holders as a group, shall have the right (though such right need not be jointly exercised by the Holders of the Certificates), on not more than one occasion in the aggregate (except as provided in clause (d) below) (it being understood and agreed that two or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time Certificates may make a written request to the Companyjoint Demand hereunder or any Holder of Certificates may join in a Demand made by any other Holder of Certificates, the Company and any such joint Demand or joining in of a Demand shall cause there be deemed to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “single Demand Registration”for all purposes hereof), and each Demanding Holder shall be entitled no more than once during any six-month period, to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 to register for offer and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 sale under the Securities Act (a “Shelf Registration”). Any request made "Demand") all or a portion of the Certificate Shares held, or represented by Certificates held by such Holders, subject to the restrictions set forth herein; provided that no Holders of Certificates shall be entitled to make a Demand hereunder unless the aggregate offering price of the securities to be offered in such Demand (net of underwriting discounts and commissions) exceeds the amounts set forth below depending on the time such Demand is exercised, as follows: As promptly as practicable after the Company receives from a Holder of Certificates (together with any other Holder who elects to participate in the registration requested under the Demand, the "Demanding Holder") a notice pursuant to this Section 2.2 10.02(a) (a "Demand Notice"), a copy of which shall be addressed have also been delivered to the attention each of the Secretary other Holders of Certificates at the same time as to the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and demanding that the request is Company register for a Shelf Registration pursuant offer and sale under the Securities Act Certificate Shares, subject to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration10.02(b), the Company shall:
shall (i) File the registration statement use all reasonable efforts to file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such form as promptly as practicablethe Company may reasonably deem appropriate (provided that the Company shall not, unless the Company otherwise determines, be obligated to register any securities on a "shelf" Registration Statement or otherwise to register securities for offer or sale on a continuous or delayed basis and shall the Company actually maintains such "shelf" Registration Statement effective) and, thereafter, (ii) after the filing of an initial version of the Registration Statement, use the Company’s best reasonable efforts to have the registration cause such Registration Statement to be declared effective under the Securities Act as soon promptly as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days practicable after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offeringStatement; provided, however, that no Demanding Holder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Certificate Shares unless such Demanding Holder has made an Election. Subject to Section 10.02(b), the Company shall use reasonable efforts to keep each Person Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by such Demanding Holder or Holders for resales of Certificate Shares for an Effectiveness Period ending on the earlier of (i) 30 days from the Effective Time of such Registration Statement and (ii) such time as all of such Certificate Shares have been disposed of by the selling Holders.
(b) The Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to not disclose in the Registration Statement a planned or proposed financing, acquisition or other corporate transaction or other material information, and the Company shall have determined in good faith that such disclosure is not in the best interests of the Company and its stockholders; provided that no one such postponement shall exceed 90 days in any six-month period and all such postponements shall not exceed 180 days in the aggregate. The Company shall advise each of the Demanding Holders in writing of any such determination as promptly as practicable after such determination.
(c) In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities subject to a Demand exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering (provided that, in the event of a joint Demand, the Applicable Securities included shall be allocated pro rata among the Demanding Holders on the basis of the relative number of Applicable Securities each such Demanding Holder has requested to be included in such Registration).
(d) The Company may include in any Registration requested pursuant to Section 10.02(a) hereof other securities for sale for its own account or for the account of another Person, subject to the provisions of the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Holders, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, shares requested to be included in such underwritten offering by any securityholder of the Company other than the Holder (each an "Other Registering Stockholder") possessing contractual rights to have its shares included in such offering prior to the Applicable Securities, on the date hereof, (ii) second, the Applicable Securities requested to be registered by the Demanding Holder and (iii) third, any other securities requested to be included in such Registration. In the event that 20% or more of the Certificate Shares requested by the Holders to be included in such Demand initiated by the Holders are excluded therefrom and securities held by other security holders (other than the Holders) are included in such Demand, the Holders shall be entitled to exercise an additional Demand in accordance with this Section 10.02.
(e) A Demanding Holder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 10.02(b), or (iv) if such Demanding Holder is prevented pursuant to Section 10.02(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Holder shall nonetheless be deemed to have been effected (and, therefore, requested) for purposes of Section 10.02(a) hereof if such Demanding Holder withdraws any Demand (A) pursuant to clause (i) of the preceding sentence after the Commission filing fee is paid with respect thereto or (B) pursuant to clause (iv) of the preceding sentence in circumstances where at least 50% of the Applicable Securities requested to be included in such Registration by such Demanding Holder could have been included, and in each case, (x) the Company has not availed itself of Section 10.02(b) with respect to such Registration request or (y) the Company has availed itself of Section 10.02(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 10.02(b). If a Demanding Holder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Holder shall be entitled to participate in such Registration pursuant to Section 10.03, but in such case the Intended Offering Notice shall be required to be given to such Demanding Holder at least five (5) consecutive Business Days immediately prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 consecutive Business Days immediately following after receipt of the request to withdraw Demand from such Demanding Holder and such Demanding Holder shall be required to give the Piggy-back Notice no later than three (3) consecutive Business Days immediately after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 10.02 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Holder, and the other co-lead underwriter shall be selected by such Demanding Holder and shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing provided that, in its opinionthe event of a joint Demand, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least other co-lead underwriter shall be selected by a majority in interest (by reference to the number of the Registrable Applicable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or othersthe Registration) exceeds of the amount which can Demanding Holders, and shall be sold in such offering within a price range reasonably acceptable to the Majority Selling Holders, securities Company. Any additional co-managing underwriters shall be included in such offering and selected by the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.Company. 37
Appears in 1 contract
Sources: Contingent Appreciation Certificate Agreement (Crown Media Holdings Inc)
Demand Registration. (ia) If At any time after one or more Holders that own hundred eighty (180) days after the initial public offering of the Company’s Common Stock pursuant to an aggregate effective registration under the Securities Act, the holders of 51% or more a majority of the Registrable Securities then outstanding (may notify the “Demanding Holders”) shall at Company that they intend to offer or cause to be offered for public sale all or any time make a written request to portion of their Registrable Securities in the Companymanner specified in such request. Upon receipt of such request, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date promptly deliver notice of such request a Demand Registration Statement pursuant to this Section 2.1 all Investors holding Registrable Securities who shall then have been declared effective by thirty (30) days to notify the CommissionCompany in writing of their desire to be included in such registration. Any If the request made pursuant 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 this Section 2.1 participate in such registration shall be addressed conditioned upon such Person’s participation in such underwritten public offering and the inclusion of such Person’s Registrable Securities in the underwritten public offering to the attention extent provided herein. The Company will use its best efforts to expeditiously effect (but in any event no later than sixty (60) days after such request) the registration of the Secretary of the Company, and shall specify the number of all Registrable Securities to be registered, the intended methods of disposition thereof and that the whose holders request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, participation in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and under the Transfer or Registrable Securities contemplated thereby would materially interfere withAct, or require premature disclosure of, any financing, acquisition or reorganization involving but only to the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationextent provided for in this Agreement; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise be required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to a request under this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with two (2) times for the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all holders of the Registrable Securities included therein shall have been disposed of pursuant as a group. Notwithstanding anything to the Registration Statementcontrary contained herein, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to request may be made under this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than within ninety (90) days after the effective date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, a registration statement filed by the Company shall use its commercially reasonable efforts to meet covering a firm commitment underwritten public offering in which the requirements holders of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated have been entitled to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration join 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, or the Initiating Substantial Holder, as the case may be, 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 right registration statement relating to select such registration has been declared effective by the underwriter or underwriters and manager or managers to administer such underwritten offering or Commission at the placement agent or agents for such agented offeringrequest of the initiating shareholders; provided, however, that each Person so selected a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(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 reasonably acceptable reduced to a number deemed satisfactory by such managing underwriter; provided, that the Company.
2.7. Whenever shares to be excluded shall be determined in the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders following order of Registrable Securitiespriority: (i) if persons not having any contractual or other right to include such Selling Holders have requested securities in the inclusion therein of more registration statement, (ii) securities held by any other Persons (other than one class the holders of Registrable Securities) having a contractual, and incidental “piggy back” right to include such securities in the Underwriters’ Representative or Agent advises each registration statement, (iii) securities to be registered by the Company pursuant to such Selling Holder in writing thatregistration statement and, in its opinionif necessary, (iv) Registrable Securities. If there is a reduction of the inclusion of more than one class number of Registrable Securities would adversely affect pursuant to clause (iv), such reduction shall be made on a pro rata basis (based upon the aggregate number of Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Demanding Holders holding at least managing underwriter shall be chosen by the holders of a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within (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 price range acceptable registration effected solely to the Majority Selling Holders, securities shall be included in such offering and the related registration, implement an employee benefit plan or a transaction to the extent which Rule 145 of the amount which can be sold Securities Act is applicable) to become effective within such price range, and on a pro rata basis among all Selling Holdersone hundred twenty (120) days following the effective date of any registration required pursuant to this Section 2.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate Subject to the provisions hereof, after the Restricted Term, the Investor and any Permitted Transferee of 51% or more the Investor (each a “Holder”) holding, collectively, a majority of the Registrable Securities then outstanding shall have the right to require the Company to file a Registration Statement registering for sale all or part of the Shares held by or issuable to them (collectively, the “Demanding HoldersRegistrable Securities”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(ian underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering”).
, and (iiiii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable Law. The Company shall be entitled use commercially reasonable efforts to postpone for up to one hundred twenty effect such registration (120including, without limitation, appropriate qualification under applicable blue sky or other state securities Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or has been so requested to register as soon as practicable (and in any of its wholly owned subsidiaries and case by the Company promptly gives the Demanding Holders notice of such determinationapplicable Filing Date); provided, however, that the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration under this Section 2.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $25,000,000. The Holders shall be entitled to require the Company to effect two (2) Demand Registrations under this Agreement.
(b) If the offering of the Registrable Securities pursuant to such Demand Registration is an Underwritten Offering, (i) the Company shall select the underwriter(s) of the Underwritten Offering, subject to the approval of the Holders of a majority of the Registrable Securities to be sold in the Underwritten Offering, such approval not to be unreasonably withheld, conditioned or delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a Shelf Registrationselling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company shall:to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary Prospectus, final Prospectus, summary Prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) give written advice to the Company of the number of securities to which such registration should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) File the registration statement with the Commission as promptly as practicable, so advise all Holders of Registrable Securities to be included in such Underwritten Offering and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use include in such registration (a) first, the Company’s best efforts number of securities requested to keep the relevant be included therein by holder(s) of Company securities having contractual rights to include Company securities in such registration statement Continuously Effective (x) if a Demand Registrationincluding, for up to two hundred seventy (270) days or until such earlier date the avoidance of doubt, the rights provided under the Investors’ Rights Agreement, dated as of which all August 14, 2015, by and between the Registrable Securities under Company and the Demand Registration statement shall have been disposed of in investors party thereto (the manner described in “Prior Rights Holders”)) with priority over the Registration StatementHolders with respect to such registration, and (yb) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii)second, the foregoing period shall number of securities requested to be extended included in such registration by all Holders of Registrable Securities to be included in such Underwritten Offering, pro rata on the basis of the aggregate number of days Registrable Securities requested to be included by each such Holder, and on a pari passu basis with the holders of such suspension or postponementcontractual registration rights provided under the Share Purchase Agreement by and between the Company and C.P. Pharmaceuticals International C.V. dated as of May 6, 2016 (the “Pfizer Holders”).
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, (d) A registration shall will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least seventy five percent (i75%) unless a of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedadministrative agency, or (iii) if any court prevents or otherwise limits 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all sale of the Registrable Securities included therein shall have been disposed pursuant to the registration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement and is not cured within forty five (45) days thereof, and (ii) in each case less than seventy five percent (75%) of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which then such Demand Registration shall registration will be deemed not to have been Continuously Effective effected for purposes of the last sentence of Section 2.1(a). If (i) a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 2.1 is deemed not to have been effected as a Demand Registration or (ii) the disposition registration requested pursuant to this Section 2.1 does not remain continuously effective until the completion of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed distribution by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use Holders of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 2.1 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 2.1(d), shall decide which class each Holder of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative permitted voluntarily to withdraw all or Agent advises each such Selling Holder in writing that, in any part of its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within Registrable Securities from a price range acceptable Demand Registration at any time prior to the Majority Selling Holderscommencement of marketing of such Demand Registration, securities provided that such registration nonetheless shall be included in such offering and the related registration, to the extent count as a Demand Registration for purposes of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderslast sentence of Section 2.1(a).
Appears in 1 contract
Demand Registration. i. At any time and from time to time, BDI may make a written demand for one underwritten registration of all or part of its Registrable Securities under the Securities Act (iany such registration, a “Demand Registration” and the registration statement relating thereto, a “Demand Registration Statement”). Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) If one of distribution thereof. The Issuer will notify all other Investors who are holders of Registrable Securities of the demand, and each such other Investor who wishes to include all or more Holders that own an aggregate a portion of 51% or more such Investor’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Issuer within fifteen (15) days after the receipt by such holder of the notice from the Issuer. Upon any such request, the Issuer will use its reasonable best efforts to effect, as promptly as practicable, the registration under the Securities Act of the Registrable Securities then outstanding which the Issuer has been so requested to register, subject to Sections 2(a) (iii), 3(a)(iv), 3(a)(v) and 6(c). All Demanding Holders proposing to distribute their securities through such underwriting shall complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements (with the “Demanding Holders”) shall at Underwriter or Underwriters selected for such underwriting by the Issuer (in the case of an offering in which the Issuer does not intend to offer any time make a written request to of its capital stock for sale, with the Companyconsent of BDI, the Company shall cause there such consent not to be unreasonably withheld)) and other documents reasonably required under the terms of the applicable underwriting arrangements and shall take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities included in such underwriting.
ii. A registration will count as a Demand Registration if (A) the Registration Statement is filed with the Commission with respect to such Demand Registration and has been declared effective, (B) the Registration Statement is withdrawn after filing at the request of a registration statement meeting the requirements majority-in-interest of the Securities Act Demanding Holders or (a “Demand Registration”), and each Demanding Holder shall be entitled C) the Registration Statement is withdrawn prior to have included therein (subject to Section 2.7) all or such number filing at the request of such Demanding Holder’s Registered Shares, as majority-in-interest of the Demanding Holder shall report Holders and the Demanding Holders fail to reimburse the Issuer for the Registration Expenses incurred by the Issuer in writingconnection therewith within 30 days of receipt of a reasonably detailed invoice therefor; provided, however, that no request may be made if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement pursuant with respect to this Section 2.1 shall such Demand Registration will be deemed not to have been declared effective by effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the CommissionDemanding Holders thereafter elect to continue the offering; provided, further, that the Issuer shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
iii. Any request made pursuant If in the sole discretion of the managing Underwriter or Underwriters the registration of all, or part of, the Registrable Securities which BDI and any other Investors requested to this Section 2.1 be included would adversely affect such public offering, then the Issuer shall be addressed required to include in the attention underwriting only that number of Registrable Securities, if any, which the Secretary of the Company, and shall specify managing Underwriter or Underwriters believe may be sold without causing such adverse effect. If the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission underwriting in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under foregoing is less than the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the total number of Registrable Securities shares which BDI and such other Investors have requested to be registeredincluded, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations then BDI and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration other Investors shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified participate in the underwriting agreement, if any, entered into in connection with pro rata based upon their total ownership of Registrable Securities. Any 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 limitation shall be deemed to have been satisfied (i) if a Demand 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 imposed in such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as avoid any diminution in the case number of shares the Issuer may be, and thereafter to maintain its eligibility, register for sale by giving first priority for the use of Form S-3. If the Company is not eligible at any time after the date hereof shares to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements be registered for the use of Form S-3 for registration of the offer issuance and sale by the Issuer and the Underwriter, and by giving second priority for the shares to be registered for sale by BDI and the other Investors.
iv. If BDI disapproves of the terms of any underwriting or is not entitled to include all of its Registrable Securities in such underwritten offering, BDI may elect to withdraw from such offering by giving written notice to the Company Issuer and the Underwriter or Underwriters of its request to withdraw prior to the filing of the Registration Statement. If BDI withdraws from a proposed offering relating to a Demand Registration because it is not entitled to include all of its Registrable Securities in such underwritten offering due to the inclusion of securities to be sold for the account of the Issuer, then such registration shall file not count as a Demand Registration. No other withdrawal by an Investor from a proposed offering relating to a Demand Registration shall cause such registration not to count as a Demand Registration except for a Registration Statement on Form S-3 with respect that is withdrawn prior to filing at the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date request of filing majority-in-interest of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least and as to which the Demanding Holders reimburse the Issuer for the Registration Expenses incurred by the Issuer in connection therewith within 30 days of receipt of a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersreasonably detailed invoice therefore.
Appears in 1 contract
Sources: Registration Rights Agreement (Comstock Homebuilding Companies, Inc.)
Demand Registration. (ia) If Upon written notice to the Issuer from one or more Holders at any time after the Effective Time (but not later than the date that own an aggregate is two years after the Effective Time) (a "Demand Request") requesting that the Issuer effect the registration under the 1933 Act of 51% any or more all of the Registrable Securities then outstanding (held by such requesting Holders, which notice shall specify the “Demanding Holders”) shall at any time make a written request to the Companyintended method or methods of disposition of such Registrable Securities, the Company Issuer shall cause there to be filed prepare and, within 60 days after such request (or 20 days in the case of the first such request), file with the Commission a registration statement meeting with respect to such Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to be declared effective under the requirements 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 the contrary:
(i) the Holders may collectively exercise their rights to request registration under this Section 2.01(a) on not more than three occasions (it being understood that a demand with respect to a two-tranche contemporaneous offering of Registrable Securities Act and related derivative securities shall be deemed to be only one demand) (each such registration being referred to herein as a “"Demand Registration”"), and each Demanding Holder ;
(ii) the Issuer shall not be entitled required to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request effect a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by hereunder unless the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number aggregate market value of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a registered pursuant to such Demand Registration pursuant is equal to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).more than $100 million;
(iii) Whenever the Company Holders shall have received a demand pursuant not be permitted to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:more than once in any six-month period; and
(iiv) File the registration statement method of disposition requested by Holders in connection with any Demand Registration may not be a Rule 415 Offering without the Commission as promptly as practicableIssuer's prior written consent, and which consent shall use be in the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offeringIssuer's sole discretion.
(iib) Use Notwithstanding any other provision of this Agreement to the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if contrary, a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration requested by Holders pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration 2.01 shall not be deemed to have been effected effected, and, therefore, not requested and the rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (ia) unless above, if such Demand Registration has not become effective under the 1933 Act or if such Demand Registration, after it became effective under the 1933 Act, was not maintained effective under the 1933 Act (other than as a registration statement with respect thereto has become effectiveresult of the request of Holders, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental government agency or court solely on the account of a material misrepresentation or omission of a Holder) for any reason at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot attributable be distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if such Holders are advised in writing (with a copy to the Selling Holders Issuer) by the lead or managing underwriter referred to in Section 2.03(b) that, in such underwriter's good faith view, all or a part of such Registrable Securities and additional equity securities cannot be sold and the inclusion of such interference is not thereafter eliminatedRegistrable Securities and additional equity securities in such registration would be likely to have an adverse effect on the price, timing or (iii) if distribution of the conditions offering and sale of the Registrable Securities and additional equity securities then contemplated, then Issuer shall be entitled to closing specified include in the underwriting agreementsuch registration only such number of additional equity securities, if any, entered into which, when added to the Registrable Securities requested by the Holders pursuant to Section 2.01(a) above, would not exceed the number of securities that can, in connection with the good faith view of such registration are not satisfied or waivedunderwriter, other than by reason be sold in such offering without so adversely affecting such offering.
(d) Within 10 days after delivery of a failure on Demand Request by a Holder, the part Issuer shall provide a written notice to each Holder, advising such Holder 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which include any or all of the Registrable Securities included therein shall have been disposed of held by such Holder for sale pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for a period sale in the Demand Registration. Any Holder may, within 10 days of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date delivery to such Holder of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration notice pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the 2.01(d), elect to so include Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant Demand Registration by written notice to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect such effect to the Registrable Securities covered by Issuer specifying the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class number of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed desired to be sold therein so included by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersHolder.
Appears in 1 contract
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more Upon the written request of the Registrable Securities then outstanding Holder or any holders of the Warrant or the Warrant Shares (the “Demanding HoldersInitiating Holder”) shall at any time make a written request to ), requesting that the CompanyCompany effect the registration under the Securities Act of all or part of such Initiating Holder’s Warrant Shares and specifying the intended method of disposition thereof, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall will promptly give written notice of such proposed requested registration to the Holder and all Holders. Any such Holder may, within twenty (20) days after receipt holders of such notice, request in writing that all of such Holder’s Registrable the outstanding Warrant and/or the Warrant Shares, or any portion thereof designated by such Holder, be included in and thereupon will use its best efforts to effect the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to a) the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, Warrant Shares which the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts has been so requested to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, register by such Initiating Holder for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified stated in such request, and (b) all other Warrant Shares that the holders thereof have made written request pursuant to Section 2.1(i) or Section 2.2, respectively. The the Company agrees to file all reports required to be filed for registration within 20 Business Days after the giving of such written notice by the Company (which request shall specify the intended method of disposition thereof), all to the extent required to permit the disposition (in accordance with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(iintended methods thereof) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the InvestorsWarrant Shares so to be registered. Subject to this paragraph 14.1, the Company may include in such registration other securities for sale for its own account or for the account of any other Person. For the purposes of this paragraph 14.1, as to any particular Warrant Shares, once issued such securities shall file cease to be Warrant Shares if (w) a Registration Statement on Form S-3 registration statement with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in sale of such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 securities shall have become effective under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, securities shall have the right to select the underwriter or underwriters and manager or managers to administer been sold in accordance with such underwritten offering or the placement agent or agents for registration statement, (x) such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed securities are eligible to be sold therein by thempursuant to Rule 144(b)(1) (or any successor provision) promulgated under the Securities Act, or (y) such securities shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested have ceased to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersoutstanding.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of Subject to the Registrable Securities then outstanding (the “Demanding Holders”) shall provisions hereof, at any time make a written request to on or after the Companydate that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(ian Underwritten Offering (as defined below).
, and (iiiii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise containing all information about such Holder required to be prepared included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and filed pursuant (y) use reasonable best efforts to this Section 2.1effect such registration (including, if without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Board determines, in its good faith reasonable judgment (with the concurrence Securities Act and any other governmental requirements or regulations) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationhas been so requested to register; provided, however, that (i) the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period. Table of Contents
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or a Shelf Registrationdelayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company shall:
(ito and for the benefit of the underwriter(s) File shall also be made to and for the registration statement with benefit of the Commission as promptly as practicableHolders proposing to distribute their securities through the Underwritten Offering, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the Company’s best efforts liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to keep losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the relevant registration statement Continuously Effective Company by or on behalf of such Holder expressly for inclusion therein and (xb) if a Demand Registrationshall not in any event, for up absent fraud or intentional misrepresentation, exceed an amount equal to two hundred seventy the net proceeds to such Holder (270after deduction of all underwriters’ discounts and commissions) days or until such earlier date as from the disposition of which all the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days terms of such suspension or postponement.
2.4underwriting agreement. The Company shall not be obligated to effect no or participate (a) more than three Demand Registrations two (2) Underwritten Offerings in any twelve (12) month period, and such (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of Shelf Registrations as may securities proposed to be necessary included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to provide each be included in such Underwritten Offering and every Substantial Holder with (ii) the right Company will be obligated and required to request one Shelf Registration. For purposes include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the preceding sentence, number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration shall will not be deemed to have been effected (i) as a Demand Registration unless a the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or administrative agency, or if any court for any reason not attributable prevents or otherwise limits the sale of the Registrable Securities pursuant to the Selling Holders registration, 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 each case less 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and or (ii) if if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been Table of Contents effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 4.2 is deemed not to have been effected as a Demand Registration or (ii) the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request registration requested pursuant to this Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to 4.2 does not remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than continuously effective until forty-five (545) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration commencement of the offer and sale distribution by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to Holders of the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 4.2 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), shall decide which class each Holder of Registrable Securities shall be included therein in permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such offering and the related registrationDemand Registration, and the other class provided that such registration nonetheless shall be excluded; and count as a Demand Registration for purposes of clause (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersproviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (i) If one [***], Purchaser and any permitted transferee of Purchaser (each a “Holder”) [***] shall have the right to require the Company to file a Registration Statement registering for sale all or more Holders that own an aggregate of 51% or more part of the Registrable Securities Shares held by or issuable to them (excluding Shares then outstanding subject to the lock-up restrictions) (collectively, the “Demanding HoldersRegistrable Securities”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. The Company shall use commercially reasonable efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the request is for a Demand Registration pursuant Company has been so requested to this Section 2.1(i)register; [***].
(ii) The If the offering of the Registrable Securities pursuant to such Demand Registration is an Underwritten Offering, (i) the Company shall be entitled select the underwriter(s) of the Underwritten Offering, subject to postpone for up to one hundred twenty (120) days the filing approval of any Demand Registration statement otherwise required the Holders of a majority of the Registrable Securities to be prepared sold in the Underwritten Offering, such approval not to be unreasonably withheld, conditioned or delayed, and filed pursuant to this Section 2.1, if (ii) the Board determines, in its good faith reasonable judgment Company shall (together with the concurrence Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter, if any), that underwriter(s) proposing to distribute their securities through such registration and the Transfer or Registrable Securities 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 determinationUnderwritten Offering; provided, howeverthat (i) the representations and warranties by, that and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not have postponed in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i)such Underwritten Offering.
(iii) Whenever If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) give written advice to the Company of the number of securities to which such registration should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall have received a demand pursuant to Section 2.1(i(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to so advise all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number Holders of Registrable Securities to be registered, the intended methods of disposition thereof included in such Underwritten Offering and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(iii) File the include in such registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering[***].
(iiiv) Use the Company’s best efforts to keep the relevant A registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall will not be deemed to have been effected (i) as a Demand Registration unless a the Registration Statement relating thereto has been declared effective by the SEC, [***] in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedadministrative agency, or (iii) if any court prevents or otherwise limits 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all sale of the Registrable Securities included therein shall have been disposed pursuant to the registration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement [***], and (ii) in each case [***] by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which then such Demand Registration shall registration will be deemed not to have been Continuously Effective effected for purposes of the last sentence of Section 6(a)(i). If (i) a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 6(a) is deemed not to have been effected as a Demand Registration or (ii) the disposition registration requested pursuant to this Section 6(a) does not remain continuously effective until the completion of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed distribution by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use Holders of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i6(a) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 6(a)(iv), shall decide which class each Holder of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative permitted voluntarily to withdraw all or Agent advises each such Selling Holder in writing that, in any part of its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within Registrable Securities from a price range acceptable Demand Registration at any time prior to the Majority Selling Holderscommencement of marketing of such Demand Registration, securities provided that such registration nonetheless shall be included in such offering and the related registration, to the extent count as a Demand Registration for purposes of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderslast sentence of Section 6(a)(i).
Appears in 1 contract
Demand Registration. If (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to within three years from the Company, ------------------- date of this Agreement the Company provisions of Article 3 shall cause there to be 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 terminated pursuant to Section 2.7) all or such number 3.2 hereof and if Premiere shall receive from an Initiating Holder, within sixty days of such Demanding Holder’s Registered Sharestermination, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
or (ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days at any time within 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or third year commencing after the date of this Agreement each Substantial Holder that Premiere shall make receive from an Initiating Holder, a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in that Premiere effect a registration with respect to all or a part of the Commission Registrable Securities, Premiere will, as soon as practicable, use its reasonable best efforts to effect such registration as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in accordance with such request, provided that Premiere shall not be obligated to -------- effect, or 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 Securities Act 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 an offering on such a delayed or continuous basis registration being declared effective prior to the 90th day subsequent to the effective date of any registration effective pursuant to Rule 415 under Section 5.2 or 5.3 of the Securities Act 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 “Shelf Registration”). Any registration request made pursuant to this Section 2.2 shall be addressed 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 attention receipt of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the a registration request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration4.1, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration Premiere shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 4.1 until the 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 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 connection which Premiere would be required to execute a general consent to service of 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 offering by one 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 more Selling Holders of Registrable Securities: (i) if delayed. If Other Stockholders request inclusion in any such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinionregistration that is underwritten, the inclusion Holders shall offer to include the securities of more than one class of Registrable Securities would adversely affect such offering, Other Stockholders in the Demanding Holders holding at least a majority underwriting and may condition such offer on their acceptance of the Registrable Securities proposed to be sold therein by them, shall decide which class further applicable provisions of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested this Article 4. The Holders whose shares are to be included in such offering registration and Premiere shall (whether 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 Selling Holders or others) exceeds the amount which can be sold Premiere and such other terms and provisions as are customarily contained in such offering within a price range acceptable underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution to the Majority Selling 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 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 the number of shares to be underwritten, 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 pro rata basis (based on 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 other securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such offering registration. If any Other Stockholder who has requested inclusion in such registration as provided above disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to Premiere, the underwriter and the related 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, to Premiere and officers and directors of Premiere may include its or their securities for its or their own account in such registration if the extent representative so agrees and if the number of the amount Registrable Securities and other securities which can would otherwise have been included in such registration and underwriting will not thereby be sold within such price range, and on a pro rata basis among all Selling Holderslimited.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make after the Closing Date, any Avista Holder or PGS may request, in writing (a written request to the Company“Demand Request”), that the Company shall cause there to be filed with effect the Commission a registration statement meeting the requirements of under the Securities Act of all or part of its or their Registrable Shares (a “Demand Registration”). Notwithstanding the foregoing, and each Demanding no Demand Request will be effective hereunder unless the Registrable Shares proposed to be sold by the Holder or Holders requesting the Demand Registration (the “Requesting Holders,” which term shall be entitled to have included therein (subject include parties deemed “Requesting Holders” pursuant to Section 2.72.1(g) all or such hereof) represent, in the aggregate, more than 25% of the total number of such Demanding Holder’s Registered SharesRegistrable Shares held by all Avista Holders or PGS, as the Demanding Holder shall report in writing; provided, however, that no request case may be made pursuant to this Section 2.1 if within six be.
(6b) months prior to the date of such request a Each Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and Request shall specify the number of Registrable Securities Shares proposed to be registered, sold and the intended methods method of disposition thereof and that of the request is for Registrable Shares (including an Underwritten Offering pursuant to Section 2.1(d) or a Demand Shelf Registration pursuant to this Section 2.1(i2.1(f).
(ii) The ). Subject to Section 2.1(h), the Company shall be entitled to postpone for up to one hundred twenty (120) days file the filing of any Demand Registration statement otherwise required within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be prepared and filed pursuant to this Section 2.1, if declared effective by the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that SEC as promptly as practicable after such registration and the Transfer or Registrable Securities 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 determinationfiling; provided, however, that the Company shall not have postponed be required to effect (i) more than four (4) Demand Registrations pursuant to this Section 2.1(iiDemand Requests made by the Avista Holders and (ii) the filing of any other more than four (4) Demand Registration statement otherwise required to be prepared and filed Registrations pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request Demand Requests made by PGS, each pursuant to Section 2.1(i2.1(a); provided, further, that if any Registrable Shares requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 2.1(e) below, the applicable Holders shall each have the right, with respect to each such exclusion, to request one additional Demand Registration.
(iiic) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the A registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for will not count as a Demand Registration or a Shelf Registration, until it has become effective (unless the Requesting Holders withdraw all their Registrable Shares and the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicablehas performed its obligations hereunder in all material respects, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if which case such demand will count as a Demand RegistrationRegistration unless the Requesting Holders pay all Registration Expenses, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended orhereinafter defined, in the case of a Demand Registrationconnection with such withdrawn registration); provided, postponed as permitted by Section 2.1(ii)however, the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentencethat if, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto after it has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution an offering of Registrable Securities thereunder Shares pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason court, such registration will be deemed not attributable to have been effected and will not count as a Demand Registration.
(d) The Requesting Holders may provide in the Demand Request that the offering of Registrable Shares pursuant to a Demand Registration shall be in the form of a “firm commitment” underwritten offering (an “Underwritten Offering”). The Requesting Holders of a majority of the Registrable Shares to be registered in a Demand Registration shall select the investment banking firm or firms to manage the Underwritten Offering, provided that such selection shall be subject to the Selling Holders consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 2.1(a) unless such Person (i) agrees to sell such Person’s Registrable Shares on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such interference is not thereafter eliminatedunderwriting arrangements; provided, however, that no such Person shall be required to make any representations or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into warranties in connection with any such registration are not satisfied or waived, other than by reason representations and warranties as to (A) such Person’s ownership of a failure on his or its Registrable Shares to be transferred free and clear of all liens, claims and encumbrances, (B) such Person’s power and authority to effect such transfer and (C) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the part obligation of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right such Person to demand a registration indemnify pursuant to this Section 2 any such underwriting arrangements shall be deemed several, not joint and several, among such Persons selling Registrable Shares, and the liability of each such Person will be in proportion to have been satisfied (i) if a the number of Registrable Shares included in such Demand Registration, upon and provided, further, that such liability will be limited to the earlier net amount received by such Person from the sale of his or its Registrable Shares pursuant to such registration.
(xe) No securities to be sold for the date as account of which all any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration for an Underwritten Offering unless the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will not materially and adversely affect the price or success of the Registrable Securities included therein Underwritten Offering (a “Material Adverse Effect”). Furthermore, in the event the managing underwriter or underwriters shall have been disposed advise the Company or the Requesting Holders that even after exclusion of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Shares proposed to be included in such Demand Registration Statementby Requesting Holders is sufficiently large to cause a Material Adverse Effect, and (y) the date as Registrable Shares of which the Requesting Holders to be included in such Demand Registration shall have been Continuously Effective for equal the number of shares which the Company is so advised can be sold in such offering without a period Material Adverse Effect and such shares shall be allocated pro rata among the Requesting Holders on the basis of two hundred seventy the number of Registrable Shares owned by each such Requesting Holder.
(270f) days, and (ii) if The Requesting Holders may provide in the Demand Request that the offering of Registrable Shares pursuant to a Shelf Registration, upon Demand Registration shall be in the effective date form of a Shelf Registration, provided no stop order or similar order“shelf offering” under the Securities Act to be made on a continuous basis pursuant to Rule 415 under the Securities Act, or proceedings for any similar rule that may be adopted by the SEC (such an orderoffering, is thereafter entered or initiated.
2.5a “Shelf Offering”). A registration pursuant to this Section 2 The Shelf Offering shall be on Form S-1 (or on Form S-3 or any similar successor form, if the Company is eligible to utilize such Form to register its shares). Subject to the terms of this Agreement, the Company shall use its best efforts to cause the Shelf Offering to be declared effective under the Securities Act as promptly as possible after the filing thereof and permit shall use its best efforts to keep such Shelf Offering continuously effective under the disposition of the Securities Act until all Registrable Securities in accordance with the intended method Shares covered by such Shelf Offering have been sold or methods of disposition specified in the request may be sold at one time pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed Rule 144 as determined by the counsel to the Company with pursuant to a written opinion letter to such effect, addressed and acceptable to the Commission in a timely manner so as to remain eligible Company’s transfer agent and the affected Avista Holders or become eligiblethe affected PGS Holders, as the case may be, and thereafter .
(g) Upon receipt of any Demand Request (including a Demand Request pursuant to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors2.1(i)), the Company shall file promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Holders (which notice shall include the number of Registrable Shares of the Requesting Holder proposed to be included in the Demand Registration and a Registration Statement on Form S-3 with respect description of the proposed disposition of such Registrable Shares), who shall have the right, exercisable by written notice to the Registrable Securities covered by Company within 20 days of their receipt of the Company’s notice, to elect to include in such Demand Registration Statement on Form S-1 or other form filed (including a Shelf Funded Repurchase pursuant to Section 2(i2.1(i)) such portion of their Registrable Shares as they may request. All Holders requesting to have all or any part of their Registrable Shares included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Agreement.
(and include h) The Company may defer the filing (but not the preparation) of a registration statement required by Section 2.1(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date of the registration statement contemplated by clause (ii) below) if (i) at the time the Company receives the Demand Request, the Company or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such Registration Statement on Form S-3 registration statement (but would not be required if such registration statement were not filed), and the information required by Rule 429 under Board of Directors of the Securities ActCompany determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) or convert prior to receiving the Registration Statement on Form S-1 Demand Request, the Board of Directors 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 diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 2.1(h) 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 formactivities are disclosed or terminated, whichever is applicableor, filed in the case of a deferral pursuant to Section 2(iclause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a Form S-3 registration statement pursuant to Rule 429 this Section 2.1(h), the Company shall promptly (but in any event within ten days), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.1(h) and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificate, the holders of a majority of the Registrable Shares held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 2.1(h) only once.
(i) In lieu of any of the Demand Registrations and if the Company has established a “shelf offering” of newly issued shares of Common Stock (the “Company Shelf Shares”) under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety made on a continuous basis pursuant to Rule 415 on Form S-3 (90the “Company Shelf”), each of the Avista Holders and PGS may issue a Demand Request for the Company to sell Company Shelf Shares and use the proceeds from such sale to purchase all or any portion of the Registrable Shares held by such Requesting Holder (the “Shelf Funded Repurchase”) days after at a price equal to the date price at which the Company Shelf Shares were sold less any underwriting discounts and commissions. Subject to the terms of filing of such Registration Statement (or amendment). Notwithstanding the foregoingthis Agreement, the Company shall use its commercially reasonable best efforts to meet keep such Company Shelf continuously effective under the requirements of Form S-3 for so long as any Securities Act until all Registrable Securities remain outstanding and under no circumstances shall Shares included in the applicable Demand Request have been purchased by the Company or may be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration sold at one time pursuant to Section 2 involves an underwritten offering (whether on Rule 144 as determined by the counsel to the Company pursuant to a “firm”written opinion letter to such effect, “best efforts” addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial HolderPGS, as the case may be, shall have . The Company will not be responsible for any fees or expenses incurred by the right to select the underwriter Avista Holders or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 PGS in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more Shelf Funded Repurchase other than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder as provided in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersSection 2.7 hereto.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of The Holder shall have the Registrable Securities then outstanding (the “Demanding Holders”) shall right at any time make a by written request notice (the "Demand Notice") given to the Company, to request the Company shall cause there to be filed register under and in accordance with the Commission a registration statement meeting the requirements provisions of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention any portion of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that Shares designated by such registration and the Transfer or Registrable Securities 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 determinationHolder; provided, however, that the Company shall not have postponed aggregate number of Registrable Shares requested to be registered pursuant to this Section 2.1(iiany Demand Notice and pursuant to any related Demand Notices received pursuant to the following sentence shall be at least 100,000 (subject to adjustment) and provided, further, however, that such registration shall, at the filing option of the Company, be on Form S-3 (or its successor form) if such form is then available for use by the Company. Upon receipt of any other such Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesNotice, the Company shall promptly give written notice notify any other Holders of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after the receipt of such noticeDemand Notice and allow them the opportunity to include Registrable Shares 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, request in the event that such Demand Registration involves an Underwritten Offering and the managing underwriter or underwriters participating in such offering advise in writing that all the Holders of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, Shares to be included in such offering that the registration.
2.2. On total number of Registrable Shares to be included in such offering exceeds the amount that can be sold in (or after during the date time of) such offering without delaying or jeopardizing the success of this Agreement each Substantial Holder that shall make a written request such offering (including the price per share of the Registrable Shares to the Company (the “Initiating Substantial Holder”be sold), then the amount of Registrable Shares to be offered for the account of such Holders shall be reduced pro rata on the basis of the number of Registrable Shares to be registered by each such Holder. The Holders as a group shall be entitled to have all three Demand Registrations pursuant to this Section 2 unless any Demand Registration does not become effective, is not maintained for a period (whether or any number not continuous) of at least the applicable period specified in Section 2(c), or where the amount of Registrable Shares to be offered for the account of such Initiating Substantial Holder’s Registrable Securities included Holders is reduced pro rata as described in the preceding sentence by more than ten percent (10%), in which case the Holders will be entitled to an additional Demand Registration pursuant hereto.
(b) The Company, within thirty (30) days of the date on which the Company receives a registration Demand Notice given by Holders in accordance with Section 2(a) hereof, shall file with the Commission SEC, and the Company thereafter shall use its best efforts to cause to be declared effective, a Registration Statement on the appropriate form (subject to the last proviso of the first sentence of Section 2(a)) for the registration and sale, in accordance with the Securities Act for an offering on intended method or methods of distribution, of the total number of Registrable Shares specified by the Holders in such Demand Notice, which may at the option of the Company include a delayed or continuous basis "shelf" registration (a "Shelf Registration") pursuant to Rule 415 under the Securities Act (a “Shelf "Demand Registration”"). Any request made .
(c) The Company shall use commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 2.2 shall be addressed to 2 continuously effective and usable for the attention resale of the Secretary of Registrable Shares covered thereby (i) in 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt case of a request for a Demand Registration or that is not a Shelf Registration, for a period of one hundred twenty (120) days from the Company shall:
(i) File date on which the registration statement with the Commission as promptly as practicable, SEC declares such Registration Statement effective and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use in the Company’s best efforts to keep case of a Shelf Registration, continuously from the relevant registration statement Continuously Effective date on which the SEC declares such Registration Statement effective, in either case (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Shares covered by such Registration statement shall Statement have been disposed of in the manner described in the sold pursuant to such Registration Statement), and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration as such period may be extended pursuant to this Section 2 2.
(d) The time period for which the Company is suspended or, in required to maintain the case effectiveness of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period any Registration Statement shall be extended by the aggregate number of days of all Holdback Periods (as defined in Section 4) and all Interruption Periods (as defined in Section 6(k)) occurring during such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations Registration and such number of Shelf Registrations period and any extension thereof is hereinafter referred to as may be necessary the "Effectiveness Period."
(e) Except to provide each and every Substantial Holder the extent required by agreements with the right to request one Shelf Registration. For purposes other security holders of the preceding sentence, registration shall not be deemed Company entered into prior to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement date of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedStock Purchase Agreement, 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 not include any securities that are not Registrable Shares in any Registration Statement filed pursuant to this Section 2 shall be deemed to have been satisfied (i) if without the prior written consent of the Holders of a Demand Registration, upon the earlier of (x) the date as of which all majority in number of the Registrable Securities included therein shall have been disposed of pursuant to the Shares covered by such Registration Statement, and which consent shall not be unreasonably withheld.
(yf) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date Holders of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration majority in number of the Registrable Shares to be included in a Registration Statement pursuant to this Section 2 may, at any time prior to the effective date of the Registration Statement relating to such Registration, revoke such request by providing a written notice to the Company revoking such request. Notwithstanding such revocation, such request shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request deemed to be a Demand Registration pursuant to Section 2.1(i2(a) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by unless the Holders of Registrable Shares who revoke such request shall reimburse the Company with for all its out-of-pocket expenses incurred in the Commission in a timely manner so as to remain eligible or become eligiblepreparation, as the case may be, filing and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration processing of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offeringStatement; provided, however, that each Person so selected shall be reasonably acceptable to that, if such revocation was based on the Company's failure to comply in any material respect with its obligations hereunder, such reimbursement shall not be required.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Stock Purchase Agreement (Churchill Environmental & Industrial Equity Partners Lp)
Demand Registration. (ia) If one At any time after 180 days after the date on which the Company becomes subject to Section 13 or more Holders that own an aggregate Section 15(d) of 51% or more the Exchange Act, the holders of at least fifty percent (50%) of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written may request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of register under the Securities Act the Registrable Securities held by such requesting holders in a firm commitment underwritten public offering or any other method of distribution (including offerings involving a “Demand Registration”delayed or continuous offering pursuant to Rule 415 under the Securities Act), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may the holders of Registrable Securities shall be made pursuant to entitled under this Section 2.1 if within six (6) months prior 2 to no more than the number of shares of Common Stock sufficient to yield net proceeds equal to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the aggregate number of Registrable Securities to be registeredmultiplied by the per share initial public offering price multiplied by 0.33 ("Minimum Demand Proceeds"); provided further however, that if the underwritten public offer (or other method of distribution) does not yield the Minimum Demand Proceeds, the intended methods holders of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company Registrable Securities shall be entitled to postpone for up to one hundred twenty (120) days request additional registrations until the filing holders 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere withshall have yielded the Minimum Demand Proceeds. Upon receipt of such request, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company shall promptly gives the Demanding Holders deliver notice of such determinationrequest to all Persons 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. The right of any Person to participate in such registration shall be conditioned upon their participation in such underwritten public offering (or such other method of distribution) and the inclusion of their Registrable Securities in the underwritten public offering (or such other method of distribution) to the extent provided herein. The Company will use its best efforts to expeditiously effect the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act and shall keep such registration effective until the Registrable Securities thereunder shall have been sold, but only to the extent provided for in the following provisions of this Agreement; provided, however, that the Company shall not have postponed be required to effect registration pursuant to a request under this Section 2.1(ii2 more than one (1) time for the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date holders of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in as a group; provided further however, that if a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify statement does not include the number of Registrable Securities requested by the holders thereof to be registeredincluded in such registration statement, the intended methods of disposition thereof and that the request is for it shall not be counted as a Shelf Registration registration statement initiated pursuant to this Section 2.22. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within 180 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 Registrable Securities shall have been entitled to join pursuant to Section 3 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested.
2.3. Following receipt of (b) With respect to a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 involving an underwritten public - 3 - offering, the Company may include in each such requested registration any authorized but unissued shares of Common Stock (or authorized treasury shares) for sale by the Company and the Shareholders may include in each such requested registration shares of Common Stock held by such Shareholders; provided, however, that any such shares of Common Stock shall not be included to the extent that the managing underwriter of the offering (if the offering is suspended orunderwritten) or the holders of a majority of the shares of Registrable Securities who requested the registration (if the offering is not underwritten), determine(s) in good faith that the inclusion of such shares will interfere with the successful marketing of the shares of Registrable Securities to be included in the case registration. If 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 Demand Registrationnumber deemed satisfactory by such managing underwriter, postponed as permitted provided that the shares to be excluded shall be determined in the following order of priority: (i) 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, (ii) securities offered on behalf of the Company, (iii) Registrable Securities of holders who did not make the original request for registration and, if necessary, and (iv) Registrable Securities of holders who requested such registration pursuant to Section 2.1(ii2. If there is a reduction of the number of Registrable Securities pursuant to clauses (iii) or (iv), the foregoing period such reduction shall be extended by made on a pro rata basis (based upon the aggregate number of days of Registrable Securities held by such suspension or postponementholders).
2.4(c) The Company shall have the right to approve the managing underwriter chosen by the holders of a majority of the Registrable Securities to be sold in such offering (which approval will not be unreasonably withheld or delayed). The Company shall be obligated to effect no more may not cause any other registration of securities for sale for its own account (other than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration effected solely to implement an employee benefit plan or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement a transaction to which Rule 145 of the Commission or other governmental agency or court for is applicable) to become effective within 90 days following the effective date of 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 required pursuant to this Section 2 shall be deemed 2.
(d) If, at the time of any request to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the register 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.22(a), respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof preparing a registration statement for a public offering (other than a registration effected solely to use Form S-3, in order implement an employee benefit plan or a transaction to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration which Rule 145 of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever Commission is applicable, ) which in fact is filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared becomes effective no later than within ninety (90) days after the request, or is engaged in any activity (including a concurrent or proposed security issuance or - 4 - acquisition) which, in the good faith determination of the Company's board of directors, would be adversely affected by the requested registration to the material detriment of the Company, then the Company may at its option direct that such request be delayed for a period (the "Black-Out Period") not in excess of 120 days from the effective date of filing such offering or the date of commencement of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holderactivity, as the case may be, . The aggregate amount of Black-Out Periods in any consecutive twelve month period 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7not exceed 120 days. Whenever the Company shall effect a registration pursuant to Nothing in this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i2(d) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class shall preclude a holder of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide from enjoying registration rights which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersit might otherwise possess under Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Preferred Payment Systems Inc)
Demand Registration. (ia) At any time after one hundred eighty (180) days after the initial public offering of the Company’s Common Stock pursuant to an effective registration under the Securities Act (the “IPO”), the holders of Registrable Securities 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 manner specified in such request. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Investors 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 one or more Holders that own the request for registration contemplates an aggregate underwritten public offering, the Company shall state such in the written notice and in such event the right of 51% or more 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 in the underwritten public offering to the extent provided herein. If, following such notice to Investors, the holders of at least thirty-three percent (33%) of the Registrable Securities then outstanding (or a lesser percent if the “Demanding Holders”anticipated aggregate offering price, net of Registration Expenses and Selling Expenses, would exceed $10 million) shall at any time make a written request to participate in such registration under the CompanySecurities Act within the thirty (30) day period described above, the Company shall cause there will use its reasonable best efforts to be filed with expeditiously effect the Commission a registration statement meeting the requirements of all Registrable Securities whose holders request to participate in such registration under the Securities Act (a “Demand Registration”)Act, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior but only to the date of such request a Demand Registration Statement pursuant to extent provided for in this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 determinationAgreement; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise be required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to a request under this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with two (2) times for the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all holders of the Registrable Securities included therein shall have been disposed of pursuant as a group. Notwithstanding anything to the Registration Statementcontrary contained herein, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to request may be made under this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than within ninety (90) days after the effective date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, a registration statement filed by the Company shall use its commercially reasonable efforts to meet covering a firm commitment underwritten public offering in which the requirements holders of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated have been entitled to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration join pursuant to Section 2 involves an underwritten offering 4 (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, have waived their right to join) 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 right registration statement relating to select such registration has been declared effective by the underwriter or underwriters and manager or managers to administer such underwritten offering or Commission at the placement agent or agents for such agented offeringrequest of the initiating shareholders; provided, however, that each Person so selected a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(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 reasonably acceptable reduced to a number deemed satisfactory by such managing underwriter; provided, that the Company.
2.7. Whenever shares to be excluded shall be determined in the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders following order of Registrable Securitiespriority: (i) persons not having any contractual or other right to include such securities in the registration statement, (ii) securities to be registered by the Company pursuant to such registration statement and, if such Selling Holders have requested the inclusion therein of more than one class of necessary, and (iii) Registrable Securities, and . If there is a reduction of the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class number of Registrable Securities would adversely affect pursuant to clause (iii), such reduction shall be made on a pro rata basis (based upon the aggregate number of Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Demanding Holders holding at least managing underwriter shall be chosen by the holders of a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within (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 price range acceptable registration effected solely to the Majority Selling Holders, securities shall be included in such offering and the related registration, implement an employee benefit plan or a transaction to the extent which Rule 145 of the amount which can be sold Securities Act is applicable) to become effective within such price range, and on a pro rata basis among all Selling Holdersone 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 (Angion Biomedica Corp.)
Demand Registration. (i) If Subject to the terms and conditions of this Agreement, at any time and from time to time after the date that is 90 days after the date hereof, upon written notice to the Company (a “Demand Notice”) delivered by one or more Qualified Holders requesting that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with effect 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 ) under the Securities Act (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made other than pursuant to this Section 2.1 if within six (6a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention any or all of the Secretary of the Company, and shall specify the number of Registrable Securities held by such Qualified Holder(s) which offering is expected to be registered, the intended methods yield aggregate gross proceeds of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1at least $25 million or, if the Board determines, in its good faith reasonable judgment (with the concurrence expected gross proceeds of the managing underwritersale of all remaining Registrable Securities is less than $25 million, if any), that then such registration and the Transfer or shall include all remaining Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesSecurities, the Company shall promptly (but in any event, not later than five Business Days following the Company’s receipt of such Demand Notice) give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after the receipt of such noticeDemand Notice to all other Holders that, request in writing that all of such Holder’s to its knowledge, hold Registrable SharesSecurities (each, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Demand Eligible Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with promptly file the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendmentthe “Demand Registration Statement”) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall and use its commercially reasonable efforts to meet effect, at the requirements earliest practicable date, the registration under the Securities Act and under the applicable state securities laws of Form S-3 for (A) the Registrable Securities which the Company has been so long requested to register by the Qualified Holder(s) in the Demand Notice, (B) all other Registrable Securities of the same class or series as those requested to be registered by the Qualified Holder(s) which the Company has been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Company within five Business Days after the giving of such written notice by the Company, and (C) any Registrable Securities remain outstanding to be offered and under no circumstances shall sold by the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant Company, in each case subject to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise2(b)(ii), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable all to the Company.
2.7. Whenever extent required to permit the Company shall effect a registration pursuant to this Section 2 disposition (in connection accordance with an underwritten offering by one or more Selling Holders the intended methods of Registrable Securities: (idisposition) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, so registered. The Holders’ rights to request a Demand Registration set forth in this Section 2(b) shall decide which class not be exercisable at any time if the Company (i) (x) is not in violation of its obligations to file a Shelf Registration Statement pursuant to Section 2(a) or (y) has a currently effective Shelf Registration Statement covering all Registrable Securities shall be included therein in such offering and the related registrationaccordance with Section 2(a), and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in has otherwise complied with its opinion, the amount of securities requested obligations pursuant to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersthis Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Amplify Energy Corp.)
Demand Registration. (a) (i) If one HEI shall have the right, on not more than four occasions in the aggregate, and no more frequently than once during any six-month period, and (ii) the Minority Stockholders as a group shall have the right (though such right need not be jointly exercised by the Minority Stockholders), on not more than two occasions in the aggregate (it being understood and agreed that two or more Holders that own an aggregate Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) a Demand shall at any time make a written request to the Company, the Company shall cause there be deemed to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “single Demand Registration”for all purposes hereof), and each Demanding Holder shall be entitled no more frequently than once during any six-month period, to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 to register for offer and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 sale under the Securities Act (a “Shelf Registration”). Any request made "Demand") all or a portion of the Registrable Securities held by such Stockholder, subject to the restrictions set forth herein; provided that no Stockholder shall be entitled to make a Demand As promptly as practicable after the Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 2.2 4.1(a) (a "Demand Notice"), a copy of which shall be addressed have also been delivered to each other Minority Stockholder at the attention of the Secretary of same time as to the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and demanding that the request is Company register for a Shelf Registration pursuant offer and sale under the Securities Act Registrable Securities, subject to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration4.1(b), the Company shall:
shall (i) File the registration statement use all reasonable efforts to file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such form as promptly as practicablethe Company may reasonably deem appropriate (provided that the Company shall not, and shall unless the Company otherwise determines, be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) and, thereafter, (ii) after the filing of an initial version of the Registration Statement, use the Company’s best reasonable efforts to have the registration cause such Registration Statement to be declared effective under the Securities Act as soon promptly as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days practicable after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offeringStatement; provided, however, that each Person so selected no Demanding Stockholder shall be reasonably acceptable entitled to be named as a selling securityholder in the Company.
2.7Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Demanding Stockholder has made an Election. Whenever Subject to Section 4.1(b), the Company shall effect use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a registration pursuant part thereof to this Section 2 be usable by such Demanding Stockholder for resales of Registrable Securities for an Effectiveness Period ending on the earlier of (i) 30 days from the Effective Time of such Registration Statement and (ii) such time as all of such securities have been disposed of by the selling securityholders.
(b) The Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to not disclose in the Registration Statement a planned or proposed financing, acquisition or other corporate transaction or other material information, and the Company shall have determined in good faith that such disclosure is not in the best interests of the Company and its stockholders; provided that no one such postponement shall exceed 90 days in any six-month period and all such postponements shall not exceed 180 days in the aggregate. The Company shall advise the Demanding Stockholder of any such determination as promptly as practicable after such determination.
(c) In connection with an underwritten offering by one offering, if the managing underwriter or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested underwriters advise the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, Company that in its opinion, or their opinion the inclusion number of more than one class of Registrable Applicable Securities would adversely affect subject to a Demand exceeds the number which can be sold in such offering, the Demanding Holders holding at least a majority Company shall include in such Registration the number of Applicable Securities that, in the Registrable Securities proposed to opinion of such managing underwriter or underwriters, can be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing provided that, in its opinionthe event of a joint Demand, the amount Applicable Securities included shall be allocated pro rata among the Demanding Stockholders on the basis of securities the relative number of Applicable Securities each such Demanding Stockholder has requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersRegistration).
Appears in 1 contract
Demand Registration. (a) At any time after the earlier of (i) If one or more Holders that own three (3) years from the date hereof and (ii) 180 days after the initial public offering of the Company’s Common Stock pursuant to an aggregate effective registration under the Securities Act, the holders of 51% or more at least a majority of the Registrable Securities then outstanding (may notify the “Demanding Holders”) shall at Company that they intend to offer or cause to be offered for public sale all or any time make a written request to portion of their Registrable Securities in the Companymanner specified in such request. Upon receipt of such request, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date promptly deliver notice of such request a Demand Registration Statement pursuant to this Section 2.1 all Investors holding Registrable Securities who shall then have been declared effective by thirty (30) days to notify the CommissionCompany in writing of their desire to be included in such registration. Any If the request made pursuant 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 this Section 2.1 participate in such registration shall be addressed conditioned upon such Person’s participation in such underwritten public offering (including entering into an underwriting agreement in customary form with the underwriter selected in accordance with Section 2(c) below and the inclusion of such Person’s Registrable Securities in the underwritten public offering to the attention extent provided herein. The Company will use its best efforts to expeditiously effect the registration of the Secretary of the Company, and shall specify the number of all Registrable Securities to be registered, the intended methods of disposition thereof and that the whose holders request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, participation in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and under the Transfer or Registrable Securities contemplated thereby would materially interfere withAct, or require premature disclosure of, any financing, acquisition or reorganization involving but only to the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationextent provided for in this Agreement; provided, however, that the Company shall not have postponed be required to effect registration pursuant to a request under this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
2 (i) File more than two times within any twelve (12) month period for the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as holders of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if as a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effectivegroup, (ii) if after such registration statement has become effective, such registration or unless 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority aggregate anticipated sales price of the Registrable Securities proposed to be sold therein in any such offering is at least $5,000,000, (iii) if the Company shall furnish to such holders requesting a registration statement pursuant to this Section 2(a), a certificate signed by themthe Chairman of the Board stating that, in the good faith judgment of the Board of Directors of the Company and upon the advice of securities law counsel reasonably acceptable to the Investors, it would be seriously detrimental to the Company and it shareholders for such registration statement to be effected at such time, in which event the Company shall decide have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating shareholders; provided, however, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period, and (iv) if the initiating shareholders 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 3 below. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which class the holders of Registrable Securities shall be included therein 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 shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) If a requested registration involves an underwritten public offering and the related registration, and managing underwriter of such offering determines in good faith that the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount number of securities requested 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: (whether i) persons not having any contractual or other right to include such securities in the registration statement, (ii) securities held by Selling Holders 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 holders who did not make the original request for registration and, if necessary, (v) Registrable Securities of holders who requested such registration pursuant to Section 2(a). If there is a reduction of the number of Registrable Securities pursuant to clauses (iv) or others(v), such reduction shall be made on a pro rata basis (based upon the aggregate number of Registrable Securities held by such holders).
(c) exceeds With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the amount which can managing underwriter shall be chosen by the holders of a majority of the Registrable Securities to be sold in such offering within a price range (which approval will not be unreasonably withheld or delayed), provided that such underwriter shall be reasonably acceptable to the Majority Selling Holders, Company. The Company may not cause any other registration of securities shall be included in such offering and the related registration, for sale for its own account (other than a registration effected solely to the extent implement an employee benefit plan or a transaction to which Rule 145 of the amount which can be sold Securities Act is applicable) to become effective within such price range, and on a pro rata basis among all Selling Holdersone 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 (Lumber Liquidators, Inc.)
Demand Registration. (ia) If one Subject to the conditions of this Section 2.2, if the Company shall receive at any time a written request from any UniPhy Preferred Shareholders or more Holders that own an aggregate ARC Key Shareholders (for purposes of 51% this Section 2.2, the "Demand Registration Investors") holding ten percent (10%) or more of the Registrable Securities then outstanding which are held by the Demand Registration Investors (the “Demanding Holders”"Initiating Investors") shall at any time make a written request to the Company, that the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as covering the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number registration of Registrable Securities having an aggregate offering price to be registeredthe public of not less than $1,000,000, then the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
Company shall, within thirty (ii) The Company shall be entitled to postpone for up to one hundred twenty (12030) days 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 (with the concurrence of the managing underwriterreceipt thereof, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration request to all Holders. Any such Holder mayof the Demand Registration Investors, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in and subject to the registration.
2.2. On or after the date limitations of this Agreement each Substantial Holder that shall make a written request Section 2.2, use its best efforts to effect, as soon as practicable, the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of all Registrable Securities that the Demand Registration Investors (for purposes of this Section 2.2, the "Demand Registration Investors") request to be registered.
(b) If the Initiating Investors intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a “Shelf Registration”). Any part of their request made pursuant to this Section 2.2 and the Company shall include such information in the written notice referred to in Section 2.2(a). In such event, the right of any Demand Registration Investor to include his Registrable Securities in such registration shall be addressed conditioned upon such Demand Registration Investor's participation in such underwriting and the inclusion of such Demand Registration Investor's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Investors and such Demand Registration Investor) to the attention extent provided herein. All Demand Registration Investors proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Secretary Initiating Investors (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2, if the underwriter advises the Company that marketing factors require a limitation of the Companynumber of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Demand Registration Investors holding Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall specify be allocated to the Demand Registration Investors on a pro rata basis based on the number of Registrable Securities held by all such Demand Registration Investors (including the Initiating Investors). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to be registered, effect a registration pursuant to this Section 2.2 with respect to the intended methods of disposition thereof and that Registrable Securities:
(i) prior to an Initial Offering; or
(ii) after the request is for a Shelf Registration Company has effected two (2) registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the (d) The Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case 2.2 with respect to any Registrable Securities:
(i) if within thirty (30) days of receipt of a Demand Registration, postponed as permitted by written request from Initiating Investors pursuant to Section 2.1(ii2.2(a), the foregoing period shall be extended by Company gives notice to the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes Registration Investors of the preceding sentence, registration shall not be deemed Company's intention to have been effected make its Initial Offering within ninety (i90) unless a registration statement with respect thereto has become effective, days; or
(ii) if after the Company shall furnish to Demand Registration Investors requesting a registration statement pursuant to this Section 2.2, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement has become effectiveto be effected at such time, such registration 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 Commission or other governmental agency or court 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 which event the Company shall have complied with its obligations under this Agreement, a the right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand 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 defer such Demand Registration shall have been Continuously Effective filing for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later more than ninety (90) days after receipt of the date request of filing of the Initiating Investors; provided that such Registration Statement (or amendment). Notwithstanding the foregoing, right to delay a request shall be exercised by the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of not more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder once in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and any twelve (ii12) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersmonth period.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more At any time following the expiration of the Registrable Securities then outstanding (Relevant Restricted Period, if the “Demanding Holders”) Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 4.1 hereof, subject to the restrictions set forth in Section 3.2, the Investors’ Representative shall at any time make have the right, by delivering a written request notice to the CompanyCompany (a “Demand Notice”), to require the Company shall cause there to be filed register under and in accordance with the Commission a registration statement meeting the requirements provisions of the Securities Act the number of Registrable Securities Beneficially Owned by any Investors and requested by such Demand Notice to be so registered (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise be required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received effect a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Demand Registration pursuant to this Section 2.2.
2.34.2(a) after the Company has effected two (2) Demand Registrations pursuant to this Section 4.2(a); and provided, further, that the Investors shall not be entitled to deliver to the Company more than one (1) Demand Registration in any 12-month period and, in any event, a Demand Notice may only be made if the sale of the Registrable Securities requested to be registered by the Investors’ Representative includes at least 25% of the shares of Company Common Stock into which the originally issued shares of the Preferred Stock (which, for the avoidance of doubt, shall include all of the shares of Preferred Stock that were issued to each of the Investors and MSD under the Purchase Agreements) may be converted or is reasonably expected to result in aggregate gross cash proceeds in excess of $50,000,000 (without regard to any underwriting discount or commission). For all purposes under this Section 4.2(a), any Demand Registration delivered to the Company by MSD under the MSD Stockholder Agreement shall be considered to be a Demand Registration delivered under this Section 4.2(a) and a Joint Demand Registration shall be deemed to be a single Demand Registration under this Section 4.2(a). A Demand Notice shall also specify the expected method or methods of disposition of the applicable Registrable Securities. Following receipt of a request for a Demand Registration or a Shelf RegistrationNotice, the Company shall:
(i) File the registration statement with the Commission shall use commercially reasonable efforts to file, as promptly as reasonably practicable, but not later than 30 days after receipt by the Company of such Demand Notice, a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Investors thereof in accordance with the methods of distribution elected by such Investors (a “Demand Registration Statement”) and shall use the Company’s best commercially reasonable efforts to have the registration cause such Registration Statement to be declared effective under the Securities Act as soon promptly as reasonably practicablepracticable after the filing thereof.
(b) If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Investors in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Investors, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.such Investor; and
(ii) Use second, among any holders of Other Securities, pro rata, based on the Company’s best efforts to keep number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) In the relevant registration statement Continuously Effective (x) if event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for up to two hundred seventy (270) a period of at least 180 days after the effective date thereof or until such earlier date as of shorter period in which all the Registrable Securities under the Demand included in such Registration statement shall Statement have actually been disposed of in the manner described in the Registration Statement, and sold.
(yd) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, The Investors’ Representative (or in the case of a Joint Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period Joint Representative) shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with have the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 notify the Company shall have complied with its obligations under this Agreement, a right that it has determined that the Registration Statement relating to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration or a Joint Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3be abandoned or withdrawn, in order to fulfill its obligations under Section 2(i) which event the Company shall file a Registration Statement on Form S-1 promptly abandon or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in withdraw such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offeringJoint Demand Registration; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a not be required to pay for expenses of any registration proceeding begun pursuant to Section 4.2(a) hereof, which has been subsequently withdrawn pursuant to this Section 2 4.2(d) at the request of the Investors’ Representative (or in connection with an underwritten offering by one or more Selling Holders the case of Registrable Securities: (i) if such Selling Holders have requested a Joint Demand Registration, the inclusion therein of more than one class of Registrable SecuritiesJoint Representative), and shall be reimbursed by the Underwriters’ Representative Investors (or Agent advises in the event of a Joint Demand Registration by each such Selling Holder in writing that, in its opinion, of the inclusion of more than one class of Investors and MSD on a pro rata basis) whose Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested were intended to be included in such offering the Demand Registration Statement or Joint Demand Registration for reasonable and documented out-of-pocket expenses (whether by Selling Holders or othersincluding legal fees and printing expenses) exceeds so incurred, unless the amount which can be sold in such offering within a price range acceptable withdrawal is based upon material adverse information concerning the Company that the Company had not publicly disclosed at least two (2) Business Days prior to the Majority Selling HoldersCompany’s receipt of such Demand Notice.
(e) Subject to Section 4.4, securities with the prior written consent of the Investors’ Representative (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall be included in such offering and entitled to coordinate any offerings under this Section 4.2 with any offerings to be effected pursuant to similar agreements with the related registrationholders of Other Securities, to the extent of the amount which can be sold within such price rangeincluding, and on a pro rata basis among if practicable, by filing one Registration Statement for all Selling HoldersOther Securities.
Appears in 1 contract
Sources: Stockholders Agreement (Phillips Van Heusen Corp /De/)
Demand Registration. (i) If one or more Holders In the event that own an aggregate of 51% or more either of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyHolders ------------------- request, but the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”)does not include, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such that number of Registrable Shares indicated for such Demanding Holder’s Registered Shares, as the Demanding Holder shall report on Schedule I hereto in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant Commission in the first calendar quarter of 1998, then such Holder may request, in writing, that the Company effect a separate demand registration of that number of Registrable Shares that when added to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of Shares sold by such Holders in 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 (with the concurrence of the managing underwriterprior offering, if any), that equals such number set forth on Schedule I opposite such Holder. If the Holders intend to distribute the Registrable Shares in an underwritten offering, they shall so advise the Company in their request. In the event such registration is underwritten, the right of other Holders to participate shall be conditioned on their participation in such underwriting upon the same terms and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing conditions. Upon receipt of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharessuch request, the Company shall promptly give written notice of such proposed registration to all Holders. Any Holders (and any other person to whom the Company is obligated to provide such Holder maynotice) which Holders and other persons shall have the right, by giving written notice to the Company within twenty (20) 30 days after receipt of such the Company provides its notice, request to elect to have included in writing such registration such of their Registrable Shares or other securities as they may request; provided that if the underwriter managing the offering determines that, because of marketing factors all of such Holder’s the Registrable Shares, or any portion thereof designated by such Holder, Shares requested to be registered may not be included in the registration.
2.2. On or after offering, then all Holders who have requested registration shall participate in the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering pro rata based on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number their total ownership of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offeringShares; provided, further, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders if any shares of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested Common Stock are to be included in such offering (whether by Selling Holders or others) exceeds Registration Statement for the amount which can be sold in such offering within a price range acceptable to account of any person other than the Majority Selling Holders, securities such shares shall be reduced before any reduction in the number of Registrable Shares requested to be included in such offering and by the related registrationHolders. The Company shall, as expeditiously as possible, use its best efforts to effect the extent registration of all Registrable Shares that have been the subject of the amount which can be sold within request under this paragraph and shall maintain the effectiveness of such price range, and on Registration Statement for a pro rata basis among all Selling Holdersperiod of 90 days.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of From and after the Registrable Securities then outstanding date hereof until five (the “Demanding Holders”5) shall at any time make a written request to the Company, years after the Company shall cause there to be filed with the Commission completes a registration statement meeting the requirements of the Securities Act (a “Demand Registration”)Qualified IPO or until Holders’ rights under this Agreement otherwise terminate, and each Demanding Holder Holders shall be entitled to have included therein the Company effect two (subject to Section 2.72) all demand registrations in the aggregate on Form ▇-▇, ▇-▇ or S-3 (or similar forms then in effect for small business entities), or such number applicable or successor forms, of Registrable Securities then owned of record and beneficially by such Demanding Holder’s Registered SharesHolders. A request for such registration (a “Registration Request”) must be made in writing by Holders owning at least fifty percent (50%) of the Registrable Securities.
(b) The Company shall use its best efforts to cause the Registrable Securities specified in the Registration Request (which amount may include Registrable Securities that were not registered pursuant to limitations or exclusions on registration set forth in Section 2.2 hereof) to be registered as soon as reasonably practicable so as to permit the sale thereof, and in connection therewith shall, within thirty (30) days after such Holders provide the Company with such a Registration Request, prepare and file a registration statement with the SEC under the Securities Act to effect such registration.
(c) Such registration statement shall contain such required information pursuant to the rules and regulations promulgated under the Securities Act and such additional information as deemed necessary by the managing underwriter or, if there is no managing underwriter, as the Demanding Company deems necessary under the Securities Act.
(d) In connection with the preparation of the registration statement, each Holder shall report in writingshall:
(i) specify the number of shares intended to be offered and sold by that Holder;
(ii) express that Holder’s intention to offer or cause the offering of such shares for distribution;
(iii) describe the nature or method of the proposed offer and sale thereof by that Holder; provided, however, that no request an
(iv) undertake to provide all such information and materials and take all such action as may be made pursuant required in order to this Section 2.1 if within six (6) months prior permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such request a Demand Registration Statement pursuant to this Section 2.1 registration statement.
(e) Notwithstanding the foregoing, if the Company shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed furnish to the attention Holders making a Registration Request a certificate signed by a duly authorized officer of the Secretary Company stating that, in the good faith judgment of the Board of Directors of the Company, and shall specify it would be seriously detrimental to the number of Registrable Securities Company for such registration statement to be registeredfiled on or before the date such filing would be required, then the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone filing of the registration statement for up to one hundred twenty ninety (12090) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 determinationdays; provided, however, that the Company shall not have postponed pursuant be entitled to this Section 2.1(iiissue such a certificate only one (1) the filing of time in any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 given twelve (12) month period ended on the date period.
(f) If a registration has become effective but is withdrawn before completion of the relevant request pursuant offering contemplated thereby because of adverse business developments at the Company that were not known to the requesting Holders when they requested that the Company initiate such registration proceedings, such registration shall not count as one of the two registrations referred to in Section 2.1(i2.1(a).
(iiig) Whenever the The Company shall have received a demand pursuant to Section 2.1(i) to effect not cause the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of any other shares of Common Stock to become effective (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention other than registration of the Secretary of the Companyan employee stock plan, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(iregistration in connection with any Rule 145 or similar transaction) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason during the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponementrequested hereunder.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (ih) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court for any reason not attributable Notwithstanding anything 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorscontrary, the Company shall file a Registration Statement on Form S-3 with respect not be required to the Registrable Securities covered by the Registration Statement on Form S-1 take any action to effect any such registration, qualification or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 compliance under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders 2.1 prior to completion of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersQualified IPO.
Appears in 1 contract
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make there is no currently effective Shelf Registration Statement on file with the Commission, any Holder that holds any Registrable Securities shall have the option and right, exercisable by delivering a written request notice to Prairie (a “Demand Notice,” and the Holder that delivers such a Demand Notice, the “Initiating Holder”), to require Prairie to, pursuant to the Companyterms of and subject to the limitations contained in this Agreement, the Company shall cause there to be filed prepare and file with the Commission a registration statement meeting Registration Statement registering the requirements offering and sale of the Securities Act (a “Demand Registration”), number and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number type of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included terms and conditions specified in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request Demand Notice (or, to the Company (extent permitted under the “Initiating Substantial Holder”)Commission’s rules and regulations, shall be entitled to have all or any number a prospectus supplement in respect of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission an existing Registration Statement) in accordance with the Securities Act for an offering intended timing and method or methods of distribution thereof specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Demand Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify The Demand Notice must set forth the number and type of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant Initiating Holder intends to this Section 2.2.
2.3include in such Demand Registration. Following receipt of a request for Notwithstanding anything to the contrary herein, in no event shall Prairie be required to effectuate a Demand Registration or a Shelf Registration, for Registrable Securities having an aggregate value of less than $50 million based on the Company shall:
(i) File VWAP of such Registrable Securities as of the registration statement with date of the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offeringDemand Notice.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than Within five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration Business Days of the offer and sale by receipt of the InvestorsDemand Notice, the Company Prairie shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing give written notice of such Registration Statement (or amendment). Notwithstanding the foregoingDemand Notice to all Holders and, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.ten
Appears in 1 contract
Sources: Stock Purchase Agreement
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 Subject to Section 2.71(b) all or such number of such Demanding Holder’s Registered Sharesand Section 3 below, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof if at the time Investor (or the successors and permitted assigns of Investor, who for purposes of this Exhibit B shall be deemed to use Form S-3be included within the term "Investor") shall hold of record collectively at least 500,000 shares of unregistered NRC Stock, Investor (or, if there are one or more permitted assignees of Investor, persons holding a majority, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration aggregate, of the offer Purchase Shares and sale NRC Shares acquired by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 Investor under the Securities ActApril 15 Agreements) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers cause NRC to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with under the 1933 Act of such Purchase Shares and such NRC Shares for an underwritten public offering by one of all or more Selling Holders part of such Purchase Shares and such NRC Shares (the Purchase Shares and such NRC Shares being (collectively referred to as "Registrable Securities: (i") if by delivering written notice of its demand to cause NRC to effect such Selling Holders have requested a registration to NRC, specifying the inclusion therein number of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class shares of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering registration and the intended method of distribution thereof (whether by Selling Holders the "Demand Registration Request"). NRC shall, as expeditiously as possible under the circumstances, use its best efforts to effect the registration under the 1933 Act and to effect any notification, registration or othersqualification under any applicable state securities law of the Registrable Securities which NRC has been so requested to register in the Demand Registration Request for disposition in accordance with the intended method of disposition stated in the Demand Registration Request (except that NRC shall not be obligated to list any of its securities on any additional stock exchange or register or comply with any laws, rules or regulations of any foreign government or agency) exceeds the amount which can be sold in such offering within a price range acceptable and all to the Majority Selling Holdersextent necessary to permit the sale or other disposition by Investor of Registrable Securities to be so registered in accordance with the method of distribution set forth in the Demand Registration Request.
(b) The demand registration rights granted in Section 1(a) above shall only be exercised concurrently with, securities and not in addition to, the exercise by Investor of the demand registration rights granted to Investor by NRC pursuant to the April 15 Agreements. Notwithstanding anything to the contrary contained in this Exhibit B or in the April 15 Agreements (including Section 1(b)(i) of Exhibit C to each of the April 15 Agreements), Investor shall have the right to exercise its demand registration rights under this Section 1 (and under Section 1 of each of the April 15 Agreements) on two occasions in the aggregate, subject to the following limitations: (i) Investor must wait at least six (6) months between exercising its demand registration rights, and (ii) each Demand Registration Request by Investor must be for at least 25% of the shares of Common Stock then owned by Investor which were originally purchased pursuant to the April 15 Agreements or this Agreement in the aggregate.
(c) Subject to Section 3 below, NRC may elect to include in any registration statement and offering made pursuant to this Section 1 authorized unissued NRC Shares or NRC Shares held by NRC as treasury shares; provided, that such NRC Shares shall be permitted to be included in such offering and the related registration, registration only to the extent that it is pursuant to and subject to the terms of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersunderwriting agreement or arrangements entered into by the Investor exercising the demand registration rights granted under this Section 1.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Mil Investments S A)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall Subject to Section 2.2, at any time make a written request to beginning six months after the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the effective date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company's initial public offering of common shares, and any one Specified Shareholder (a "Demanding Shareholder"), but only, in the case of Securitas Capital Fund, with respect to one Registered Public Offering as provided in Section 2.1(b), shall specify have the right to require the Company to use its reasonable best efforts to fulfill such requirements as may be necessary to permit a Registered Public Offering (on a firm-commitment, underwritten basis) of Registrable Securities for the account(s) of Specified Shareholders, by delivering written notice of such demand to the Company specifying the number of Registrable Securities that are held of record, and are proposed to be registeredsold in such offering, by the intended methods Demanding Shareholder (a "Demand Request"). If more than one Demand Request is submitted to the Company before the Company delivers a Notice of disposition Demand Request in respect thereof pursuant to, and that the request is for as defined in, Section 2.1(c), then all such Demand Requests and their Demanding Shareholders shall be treated collectively, as a single Demand Request and a single Demanding Shareholder, respectively, provided that, if a Demand Registration pursuant Request is permitted to be withdrawn under Section 2.2(a), (b) or (c), and if such request involves individual Demand Requests that have been submitted by more than one Demanding Shareholder and are being treated collectively as a single Demand Request under this Section 2.1(i).
(ii) The Company sentence, then each such Demanding Shareholder that submitted such an individual request shall be entitled to postpone for up withdraw its own individual request, and its determination whether or not to one hundred twenty (120) days the filing of withdraw shall apply solely with respect to its own individual request, provided, further, that any Demand Registration statement otherwise required such individual request or requests that are not withdrawn need not be withdrawn and shall continue to be prepared and filed pursuant to this counted as a single Demand Request as long as, collectively, they satisfy any requirement that may apply under Section 2.12.1(b) and, if the Board determinesthey do not, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 they shall be deemed to have been satisfied withdrawn as well, and, provided, further, that all Joining Requests (ias defined below) if a Demand Registration, upon the earlier of shall (x) the date except 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(inext sentence) remain in effect as long as any one or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing more of such Registration Statement (or amendment)individual Demand Requests remain in effect. Notwithstanding the foregoing, a Founder (or, solely with respect to one Registered Public Offering, Securitas Capital Fund as provided in Section 2.1(b)) making a Joining Request shall have the right to withdraw such request if at such time a Demand Request is permitted to be withdrawn under Section 2.2(a), (b) or (c).
(b) Notwithstanding the foregoing, if the total number of Registrable Securities specified in any Demand Request is less than a number of shares of Common Stock equal to the lesser of (i) 10% of all shares of Common Stock outstanding as of the date of such Demand Request, or (ii) shares of Common Stock having a value of $100 million, based on the Current Market Price as of the date of such Demand Request, then neither the rights of any Specified Shareholder, nor the obligations of the Company set forth in this Article II, shall arise in respect of such Demand Request(s), which shall be deemed null and void and without effect and will not be counted as a Demand Request for any purpose hereunder. Notwithstanding any provision hereof, Securitas Capital Fund shall be entitled to make a Demand Request only once (whether or not any such request is joined with another Demand Request made by a Founder, but excluding any such request that is withdrawn and nullified pursuant to Section 2.2(a), (b) or (c)), and all rights that Securitas Capital Fund may have under this Article II in its capacity as a Seller Specified Shareholder (as defined below) shall apply solely with respect to one Registered Public Offering as to which it has made an effective Demand Request.
(c) The Company shall give prompt written notice (the "Notice of Demand Request") of its receipt of any such Demand Request to all Specified Shareholders who hold of record any Registrable Securities and thereupon the Company shall use its commercially reasonable best efforts to meet effect the requirements of Form S-3 for so long as any Registrable registration under the Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable SecuritiesAct of: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by themincluded in the Demand Request for disposition in a firm-commitment, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excludedunderwritten public offering; and (ii) if all other Registrable Securities as to which Specified Shareholders who are the Underwriters’ Representative or Agent advises each holders thereof shall have made a written request (a "Joining Request") to the Company for registration thereof within fifteen (15) days after the transmittal of such Selling Holder in writing thatNotice of Demand Request by the Company, in its opinioneach case as necessary to permit such holders, together with a Demanding Shareholder (each, a "Seller" and, collectively, the amount of securities requested "Sellers"), to be included sell Registrable Securities in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holdersfirm-commitment, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersunderwritten public offering.
Appears in 1 contract
Sources: Registration Rights Agreement (Allied World Assurance Co Holdings LTD)
Demand Registration. (ia) If one or more Holders that own an aggregate At any time following the Closing Date and as many times as may be required for the disposition of 51% or more all Registrable Securities, any of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make Initiating Holders may give a written request to the Company, Company to effect the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) of all or such number any portion of such Demanding Holder’s Registered SharesRegistrable Securities, as the Demanding Holder shall report in writing; provided, however, that no which written request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registeredregistered and the intended method of disposition thereof (each such registration shall be referred to herein as a “Demand Registration”); provided that, subject to Section 2.1(d), the Company shall not be obligated to effect any Demand Registration (x) with respect to Registrable Securities that are held in escrow under the Escrow Agreement, (y) within 90 days after the effective date of a previous Registration Statement (or such shorter period as the Company may determine in its sole discretion) pursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and actually sold at least 75% of the Registrable Securities requested to be included therein or (z) as provided in Section 2.7. Thereafter, the Company shall promptly, and in any event, within five (5) days after receiving such request, give written notice of the proposed registration to all other Holders and use its commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of:
(i) all Registrable Securities for which the requesting Holder has requested registration under this Section 2.1;
(ii) all Registrable Securities held by any other Holder specified in a written request received by the Company within five (5) days after written notice regarding such registration from the Company is delivered; and
(iii) any Common Stock to be offered or sold by the Company; to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of disposition thereof and that the request Registrable Securities to be so registered. At any time the Company is eligible for use of an Automatic Shelf Registration Statement, if specified in such notice for a Demand Registration pursuant to this Section 2.1(i)Registration, such registration shall occur on such form.
(iib) At any time prior to the effective date of the Registration Statement relating to such Demand Registration, any requesting Holder may, upon notice to the Company, revoke their request in whole or in part with respect to the number of shares of Registrable Securities requested to be included in such Registration Statement.
(c) The Company shall be entitled to postpone liable for up to one hundred twenty (120) days the filing of and pay all Registration Expenses in connection with any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1Registration, if the Board determines, in its good faith reasonable judgment (with the concurrence regardless of the managing underwriter, if any), that whether such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i)becomes effective.
(iiid) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a A Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected occurred:
(i) unless the Registration Statement relating thereto (A) has become effective under the Securities Act and (B) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Holders included in such registration statement have actually been sold thereunder) or (y) with respect thereto has become to a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided that such Registration Statement shall not be considered a Demand Registration if, after such Registration Statement becomes effective, (ii1) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder Registration Statement is interfered with by any stop order, injunction or other order or requirement of the Commission SEC or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii2) 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 less 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all 75% 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.have been sold thereunder; or
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 66.67% of the Registrable Securities of the Holders sought to be included in such registration are included.
(e) The Company shall not include in any Demand Registration or Agent Shelf Registration any securities that are not Registrable Securities without the prior written consent of the selling Holders. If a Demand Registration involves a Public Offering and the lead managing underwriter advises each such Selling Holder in writing the Company and the selling Holders that, in its opinionview, the amount number of securities shares of Registrable Securities requested to be included in such offering registration (whether by Selling Holders or othersincluding any securities that the Company proposes to be included that are not Registrable Securities) exceeds the amount which largest number of shares that can be sold in without having a material and adverse effect on such offering within a offering, including the price range acceptable to the Majority Selling Holders, securities shall be included in at which such offering and the related registration, to the extent of the amount which shares can be sold within (the “Maximum Offering Size”), the Company shall include in such price rangeregistration, up to the Maximum Offering Size, first, all Registrable Securities requested to be registered by the Holders, based on the pro rata percentage of Registrable Securities held by such Holders (determined based on the aggregate number of Registrable Securities held by each such Holder), and on a pro rata basis among all Selling Holderssecond, any securities proposed to be registered by the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Target Hospitality Corp.)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of Subject to the Registrable Securities then outstanding (the “Demanding Holders”) shall provisions hereof, at any time make a written request to on or after the Companyone (1) year anniversary of the Closing Date (as defined in the Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(ian Underwritten Offering (as defined below).
, and (iiiii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise containing all information about such Holder required to be prepared included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and filed pursuant (y) use reasonable best efforts to this Section 2.1effect such registration (including, if without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Board determines, in its good faith reasonable judgment (with the concurrence Securities Act and any other governmental requirements or regulations) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationhas been so requested to register; provided, however, that (i) the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration under this Section 4.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or a Shelf Registrationdelayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.8 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company shall:
(ito and for the benefit of the underwriter(s) File shall also be made to and for the registration statement with benefit of the Commission as promptly as practicableHolders proposing to distribute their securities through the Underwritten Offering, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the Company’s best efforts liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to keep losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the relevant registration statement Continuously Effective Company by or on behalf of such Holder expressly for inclusion therein and (xb) if a Demand Registrationshall not in any event, for up absent fraud or intentional misrepresentation, exceed an amount equal to two hundred seventy the net proceeds to such Holder (270after deduction of all underwriters’ discounts and commissions) days or until such earlier date as from the disposition of which all the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days terms of such suspension or postponement.
2.4underwriting agreement. The Company shall not be obligated to effect no or participate (a) more than three Demand Registrations two (2) Underwritten Offerings in any twelve (12) month period, and such (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of Shelf Registrations as may securities proposed to be necessary included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to provide each be included in such Underwritten Offering and every Substantial Holder with (ii) the right Company will be obligated and required to request one Shelf Registration. For purposes include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the preceding sentence, number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration shall will not be deemed to have been effected (i) as a Demand Registration unless a the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or administrative agency, or if any court for any reason not attributable prevents or otherwise limits the sale of the Registrable Securities pursuant to the Selling Holders registration, 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 each case less 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and or (ii) if if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.1(a). If (i) a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 4.1 is deemed not to have been effected as a Demand Registration or (ii) the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request registration requested pursuant to this Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to 4.1 does not remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than continuously effective until forty-five (545) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration commencement of the offer and sale distribution by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to Holders of the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 4.1 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.1(d), shall decide which class each Holder of Registrable Securities shall be included therein in permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such offering and the related registrationDemand Registration, and the other class provided that such registration nonetheless shall be excluded; and count as a Demand Registration for purposes of clause (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersproviso to Section 4.1(a).
Appears in 1 contract
Sources: Securities Purchase Agreement (Parkway Properties Inc)
Demand Registration. (a) Subject to Section 2.1, from time to time after the later to occur of (i) If one or more Holders that own an aggregate of 51% or more the expiration of the Registrable Securities then outstanding Lock-up Period (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request same may be made pursuant to this extended or come back into force as provided in Section 2.1 if within six (62.1(c)) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company the date which is 180 days following the closing of the Initial Public Offering, the Shareholder shall be entitled have the right to postpone for up make four separate written requests (each, a “Demand”) on Lukoil to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required cause Lukoil to use best efforts to file and cause to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company declared effective a Registration Statement on Form F-l 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 appropriate form under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed with respect to the attention Shares; provided that the expected aggregate offering price of the Secretary of the Company, and shall specify the number of Registrable Securities Shares requested to be registered, registered with respect to any Demand is at least the intended methods lesser of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File 25% of the registration statement with Shareholder’s aggregate Beneficial Ownership interest in Lukoil or (ii) $500,000,000. This Section 3.2(a) shall be applicable for so long as the Commission as promptly as practicable, and shall use the Company’s best efforts Shares cannot be freely transferred pursuant to have the registration declared effective Rule 144 under the Securities Act as soon as reasonably practicablewithout the imposition of volume, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence manner of sale and complete other actions that are reasonably necessary to effect a registered public offeringholding period limitations.
(iib) Use Any Demand will set forth the Company’s best efforts number of Shares the Shareholder proposes to keep sell and the relevant intended method of distribution of such shares.
(c) If any offering or sale of Shares by the Shareholder pursuant to a registration statement Continuously Effective (x) if a Demand Registration, for up is not consummated due to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities any failure by Lukoil to perform its obligations under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii)Agreement, the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration Shareholder shall not be deemed to have been effected (imade a Demand in accordance with Section 3.2(a) unless a registration statement with respect thereto has become effective, (ii) if after to which such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement was filed.
(d) The selection of the Commission or other governmental agency or court underwriters 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 offering pursuant to this Section 2 3.2 shall be deemed made by ConocoPhillips, provided that any such underwriters shall be reasonably satisfactory to have been satisfied Lukoil.
(ie) if a Demand Registration, upon Lukoil will pay all expenses associated with the earlier of (x) the date as of which all registration and sale of the Registrable Securities included therein shall have been disposed of pursuant to the Registration StatementShares including without limitation its own legal, accounting, printing and (y) the date as of which such Demand Registration shall have been Continuously Effective distribution fees and expenses, except for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance fees associated with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, Shares and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form commissions and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 underwriting discounts payable with respect to the Registrable Securities covered Shares, which shall be paid by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2Shareholder.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the CompanyCommencing February 9, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of2007, 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Requesting Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall may make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request specifying that it is being made pursuant to this Section 2.2 2) that the Company file a registration statement under the 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the 1▇▇▇ ▇▇▇) covering the registration of Registrable Stock. In such event the Company shall (i) within ten (10) days thereafter notify in writing all other Holders of Registrable Stock of such request, and (ii) use commercially reasonable efforts to cause such registration statement to be prepared and filed with the Commission under the 1933 Act registering the resale of all Registrable Stock that the Requesting Holders and such other Holders have, within forty-five (45) days after the Company has given such notice, requested be registered.
(b) If the Holders intend to distribute the Registrable Stock covered by their request by means of an underwritten offering, they shall so advise the Company. All Holders proposing to distribute Registrable Stock through such underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters. Such underwriter or underwriters shall be addressed to the attention selected by a majority in interest of the Secretary of Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall specify also be made to and for the number benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Securities Stock of such Holder and such Holder’s intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock required to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration registered pursuant to this Section 2.22 advises the Holders in writing that in its opinion marketing factors require a limitation of the number of shares to be underwritten, the Holders shall so advise all Holders of Registrable Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in such underwritten offering shall be allocated among all such Holders, including the Holders, in proportion (as nearly as practicable) to the amount of Registrable Stock requested to be included in such registration by each Holder at the time of filing the registration statement; provided, that in the event of such limitation of the number of shares of Registrable Stock to be underwritten, the Holders shall be entitled to an additional demand registration pursuant to this Section 2. If any Holder of Registrable Stock disapproves of the terms of the underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and the Holders. The securities so withdrawn shall also be withdrawn from registration.
2.3. Following receipt (d) Notwithstanding any provision of a request for a Demand Registration or a Shelf Registrationthis Agreement to the contrary, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended orduring the period starting with the fourteenth (14th) day immediately preceding the date of an anticipated filing by the Company of, and ending on a date ninety (90) days following the effective date of, a registration statement pertaining to a public offering of securities for the account of the Company; provided, that the Company shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and provided further, that the case Company’s estimate of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period date of filing such registration statement shall be extended by the aggregate number of days of such suspension or postponementmade in good faith.
2.4. (e) The Company shall be obligated to effect no more than three Demand Registrations and such number pay for a total of Shelf Registrations as may be necessary only one (1) registration pursuant to provide each and every Substantial Holder with the right this Section 2, unless increased pursuant to request one Shelf Registration. For purposes of the preceding sentenceSection 2(c) hereof; provided, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2(e), unless (i) unless a registration statement with respect thereto it has become effective, been declared effective by the Commission (ii) if after it is a shelf registration, it has remained effective for the period set forth in Section 3(b), (iii) the offering of Registrable Stock pursuant to such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by not subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the 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 any such action prompted by reason of a failure on the part any act or omission 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 (i) if a Demand 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 (yiv) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition limitation of the number of shares of Registrable Securities in accordance with the intended method or methods of disposition specified in the request Stock to be underwritten has been required pursuant to Section 2.1(i2(c) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2hereof.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Subscription Agreement (Digifonica International Corp)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more At any time and from time to time beginning on the date the Company is eligible to use Form S-3 for the offer and sale of the Registrable Securities then Securities, any Holder or group of Holders (together with any of their respective Affiliates or Related Funds) that hold, in the aggregate, at least five percent (5%) of the outstanding Common Stock at such time, may request in writing (the “Demanding HoldersDemand Registration Request”) shall at any time make a written request to the Company, that the Company shall cause there to be filed effect the registration of all or part of such Holder’s or Holders’ Registrable Securities with the Commission a registration statement meeting under and in accordance with the requirements provisions of the Securities Act (each, a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or . The Company will file a Registration Statement covering such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of or Holders’ Registrable Securities requested to be registered, the intended methods of disposition thereof and that the request is for a Demand shall use its reasonable best efforts to cause such Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required Statement to be prepared and filed pursuant to this Section 2.1declared effective, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 as promptly gives the Demanding Holders notice as practicable after receipt of such determinationrequest; provided, however, that the Company shall will not have postponed be required to file a Registration Statement pursuant to this Section 2.1(ii5(a):
(i) unless the filing of any other Demand Registration statement otherwise required Registrable Securities requested to be prepared and filed sold by the Holders pursuant to this Section 2.1 during such Registration Statement have an anticipated aggregate gross offering price (before deducing underwriting discounts and commissions) of at least $25 million;
(ii) if the 24 month period ended on Registrable Securities requested to be registered are already covered by an existing and effective Registration Statement and such Registration Statement may be utilized for the date offer and sale of the relevant request pursuant Registrable Securities requested to Section 2.1(i).be registered; or
(iii) Whenever if the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request Demand Registration Requests previously made pursuant to this Section 2.2 5(a) shall equal or exceed three (3) in any twelve (12)-month period; provided, however, that a Demand Registration Request shall not be addressed to considered made for purposes of this clause (iii) unless the attention requested Registration Statement has been declared effective by the Commission for more than seventy-five percent (75%) of the Secretary full amount of the Company, and Registrable Securities for which registration has been requested.
(b) A Demand Registration Request shall specify (i) the then-current name and address of such Holder or Holders, (ii) the aggregate number of Registrable Securities requested to be registered, (iii) the total number of Registrable Securities then beneficially owned by such Holder or Holders, and (iv) the intended means of distribution.
(c) The Company may satisfy its obligations under Section 5(a) hereof by amending (to the extent permitted by applicable law) any registration statement previously filed by the Company under the Securities Act, so that such amended registration statement will permit the disposition (in accordance with the intended methods of disposition thereof and that specified as aforesaid) of all of the request is Registrable Securities for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for which a Demand Registration or a Shelf Registration, Request has been properly made under Section 5(b) hereof. If the Company shall:
(i) File the so amends a previously filed registration statement with the Commission as promptly as practicablestatement, and shall use the Company’s best efforts it will be deemed to have the effected a registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offeringfor purposes of Section 5(a) hereof.
(iid) Use the Company’s The Company will use its reasonable best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date Registration Statement that has become effective as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statementcontemplated by this Section 5 continuously effective, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant not subject to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other similar order or requirement of the Commission or other governmental agency or court 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 Commission:
(i) if in the case of a Demand RegistrationRegistration Statement other than a Shelf Registration Statement on Form S-3, upon until all Registrable Securities registered thereunder have been sold pursuant to such Registration Statement; and
(ii) in the case of a Shelf Registration Statement on Form S-3, until the earlier of of: (x) three (3) years following the date as Effective Date of which all of the Registrable Securities included therein shall have been disposed of pursuant to the such Shelf Registration Statement, Statement on Form S-3; and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the that all Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed covered by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a such Shelf Registration Statement on Form S-3 with respect shall cease to be Registrable Securities.
(e) The Holder or Holders making a Demand Registration Request may, at any time prior to the Registrable Securities covered by Effective Date of the Registration Statement on Form S-1 relating to such registration, revoke their request for the Company to effect the registration of all or other form part of such Holder’s or Holders’ Registrable Securities by providing a written notice to the Company. If, pursuant to the preceding sentence, the entire Demand Registration Request is revoked, then, at the option of the Holder or Holders who revoke such request, either (i) such Holder or Holders shall reimburse the Company for all of its reasonable and documented out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement, which out-of-pocket expenses, for the avoidance of doubt, shall not include overhead expenses and which requested registration shall not count as one of the permitted Demand Registration Requests hereunder or (ii) the requested registration that has been revoked will be deemed to have been effected for purposes of Section 5(a).
(f) If a Registration Statement filed pursuant to this Section 2(i) (and include in such 5 is a Shelf Registration Statement on Form S-3 Statement, then upon the information required by Rule 429 under the Securities Act) demand of one or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoingmore Holders, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on facilitate a “firm”, “best effortstakedown” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, in the Demanding Holders holding at least a majority form of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing thatan Underwritten Offering, in its opinionthe manner and subject to the conditions described in Section 6 of this Agreement, provided, that the amount number of securities requested to be shares of Common Stock included in such offering underwritten “takedown” shall equal at least five percent (whether by Selling Holders or others5%) exceeds the amount which can be sold in of all outstanding shares of Common Stock at such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderstime.
Appears in 1 contract
Sources: Registration Rights Agreement (Parker Drilling Co /De/)
Demand Registration. (ia) If one Upon the written request of any ------------------- Philips Person (provided that such request may be made only with the prior written approval of the Shareholder at any time that the Shareholder or more Holders its Affiliates own any Registrable Securities) requesting that own an aggregate the Company effect the registration under the Securities Act, or the listing or other qualification for sale on any European exchange, of 51% all or more part of the Registrable Securities then outstanding owned by such Philips Person, and specifying the intended method of disposition thereof (including the “Demanding Holders”) shall at any time make a written request exchange or market through which such Philips Person intends to effect such disposition, if applicable), but subject to the Companylimitations set forth herein, the Company will promptly (but in no event more than five Business Days after the receipt of such request) give written notice of such requested registration, listing or other qualification to all other Philips Persons, and the Company shall cause there to be filed file with the Commission a appropriate authorities, self-regulatory organization or stock exchange, as promptly as practicable after sending such notice, and use its best efforts to cause to become effective, any necessary registration statement meeting the requirements of under the Securities Act or listing particulars or other appropriate documentation under applicable non-U.S. securities laws in order to be effectuate the offering and sale of:
(i) the Registrable Securities which the Company has been so requested to register, list or otherwise qualify by such Philips Person, and
(ii) all other Registrable Securities which the Company has been requested to register, list or otherwise qualify by any other Philips Person by written request given to the Company within 30 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities (including the exchange or market through which it intends to effect such disposition, if applicable)), all to the extent necessary to permit the disposition (in accordance with the intended method thereof as aforesaid) of the Registrable Securities so to be registered, listed or otherwise qualified (a “Demand Registration”"DEMAND REGISTRATION"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, howeverthat (W) the Company shall not be obligated to file a registration statement, that no request may be made listing particulars or other similar document pursuant to this Section 2.1 if within six 2 on more than an aggregate of two occasions, (6X) months prior the Company shall not be obligated to the date of such request file a Demand Registration Statement registration statement, listing particulars or other similar document pursuant to this Section 2.1 shall have been declared effective by 2 unless the Commission. Any request made aggregate amount of Registrable Securities that any Philips Persons seek to register pursuant to this Section 2.1 2 constitutes the lesser of (i) at least 20% of all Registrable Securities initially held by Philips Persons, (ii) Registrable Securities with an aggregate proposed sales price of at least U.S. $10,000,000 and (iii) all of the remaining Registrable Securities then outstanding, (Y) UPC shall not be obligated to file a registration statement, listing particulars or other similar document pursuant to this Section 2 other than in the primary market for the Registrable Securities in respect of which the Demand Registration shall be addressed made, if any, and if there is no primary market for such Registrable Securities, UPC shall be obligated to file a registration statement, listing particulars or other similar document pursuant to this Section 2 in the attention European or U.S. market through which the Philips Person intends to effect the disposition hereunder, and (Z) if, with respect to such requested registration, listing or other qualification, the managing underwriter, the appropriate authorities, self-regulatory organization or stock exchange, the Securities Act or the rules and regulations thereunder, or applicable [non-U.S.] securities laws, would require the conduct of an audit other than the regular audit conducted by the Company at the end of its fiscal year, in which case such registration, listing or other qualification may be delayed until the completion of such regular audit and the filing of such audited financial statements with the appropriate authorities, self-regulatory organization or stock exchange (unless each of the Secretary of Philips Persons involved in the Companyregistration agrees to pay the pro rata share, and shall specify based on the number of Registrable Securities to that such Philips Person has requested be registered, of the intended methods Company's expenses in connection with such a special audit). The Company shall not allow any other Person other than a Philips Person or the Company to include any securities in such Demand Registration.
(b) If the Philips Persons requesting a Demand Registration so elects (provided that such election, including the choice of disposition thereof and that underwriter, may only be made with the request is for prior written approval of the Shareholder at any time the Shareholder or its Affiliates own any Registrable Securities), a Demand Registration pursuant to this Section 2.1(i2 shall be in the form of an underwritten offering through two co-underwriters which shall be an investment banking firm or firms of established reputation one of which shall be designated by the Philips Persons demanding such registration designation and the other of which shall be designated by the Company. If a Demand Registration pursuant to this Section 2 involves an underwritten offering and the managing underwriter advises the Shareholder and the Company in writing that, in its opinion, the number of securities requested to be included in such Demand Registration exceeds the number which can be sold in such offering without a significant adverse effect on the price, timing or distribution of the Registrable Securities to be offered, then the Company will include in such Demand Registration (i) first, 100% of the Registrable Securities which the Shareholders and its Affiliates requested to be included in such Demand Registration (or such lesser number of Registrable Securities which is equal to the number which, in the opinion of the managing underwriter, can be sold) and (ii) second, any additional number of Registrable Securities which, in the opinion of the managing underwriter, can be sold, such number to be allocated pro rata among all requesting Philips Persons (other than the Shareholder and its Affiliates referred to in clause (i) above) on the basis of the relative number of Registrable Securities then held by each such holder (provided that any shares thereby allocated to any such holder that exceed such holder's request shall be reallocated among the remaining requesting holders of Registrable Securities in like manner). In the event that the number of Registrable Securities requested to be included in such Demand Registration is less than the number which, in the opinion of the managing underwriter, can be sold, the Company may include in such Demand Registration such number of securities of the Company to be sold on behalf of the Company as, in the opinion of the managing underwriter, can be sold without a significant adverse effect on the price, timing or distribution of the Registrable Securities to be offered.
(iic) The Company shall be entitled to postpone for up a reasonable period of time (not to one hundred twenty (120exceed 120 days, which may not thereafter be extended) days the filing of any Demand Registration statement registration statement, listing particulars or other similar documentation otherwise required to be prepared and filed by it pursuant to this Section 2.12(a) hereof if, if at the time it receives a request for such registration, listing or other qualifications, the Supervisory Board determinesof the Company determines in good faith that such offering will materially interfere with a pending or contemplated financing, merger, sale of assets, recapitalization or other similar corporate action of the Company, in its good faith reasonable judgment (with which case the concurrence Company shall have furnished to holders of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 requesting such determinationDemand Registration a Managing Director's Certificate to that effect; provided, however, that the Company shall not have postponed exercise the right to postpone any registration, listing or other qualification pursuant to this Section 2.1(ii2(c) more than once in any 12 month period. After such period of postponement the filing Company shall effect such registration, listing or other qualification as promptly as practicable without further request from the holders of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant Registrable Securities, unless such request pursuant to Section 2.1(i)has been withdrawn.
(iiid) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company not be obligated to file a Registration State on registration statement, listing particulars or similar document at the request of any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, Philips Person if the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Company and such Philips Person shall have received an opinion of counsel reasonably satisfactory in form and substance to such Philips Person and the right Company to select the underwriter effect that (i) the disposition of such Registrable Securities in the manner and upon the same terms and conditions (including pricing terms) proposed by such Philips Person may be effected without registration, listing or underwriters other qualification under statutes, laws, rules and manager regulations of any governmental authority or managers self-regulatory organization with authority to administer such underwritten offering supervise or regulate the placement agent or agents for such agented offeringprimary market in which the Company's shares are traded; provided, howeverthat the Registrable Securities so disposed of would be unrestricted with respect to resale under such statutes, that each Person so selected shall be reasonably acceptable to laws, rules and regulations in the hands of a transferee who is not an Affiliate of the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Securities Purchase and Conversion Agreement (United International Holdings Inc)
Demand Registration. (i) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at At any time make after October 30, 2000 the Shareholder may require the Company (pursuant to a written request notice to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of Shares of the Company (a “Shelf "Demand Registration”"). Any Such request made pursuant to this Section 2.2 (a "Demand Request") by the Shareholder shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File specify the registration statement with the Commission as promptly as practicable, class and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension Shares which the Shareholder intends to sell or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) daysdispose of, and (ii) if state the intended method or methods by which the Shareholder intends to sell or dispose of such Shares. In connection with any underwritten public offering, the underwriter thereof shall be selected by the Company, subject to the consent of the Shareholder, which shall not be unreasonably withheld. Upon receipt of a Shelf RegistrationDemand Request, upon the effective Company shall (as requested) (i) cause to be filed, within seventy-five (75) calendar days of the date of delivery to the Company of the request, a Shelf Registrationregistration statement covering such Shares which the Company has been so requested to register, provided no stop order or similar order, or proceedings providing for the registration under the Securities Act of such an order, is thereafter entered or initiated.
2.5. A registration pursuant Shares to this Section 2 shall be on Form S-3 and the extent necessary to permit the disposition of the Registrable Securities such Shares so to be registered in accordance with the intended method or methods of disposition distribution specified in such request (provided, further, that in either case the request pursuant Company may delay making such filing or taking such action by not more than sixty (60) calendar days if the Company, prior to Section 2.1(i) or Section 2.2, respectively. The Company agrees the time it would otherwise have been required to file all reports required to be filed by such registration statement or take such action, determines in good faith that the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (registration statement or amendment). Notwithstanding the foregoingtaking of such action would require the disclosure of material nonpublic information that, in the reasonable judgment of the Company, would be detrimental to the Company if so disclosed (and a delay would be likely to reduce the detrimental effect of such disclosure or obviate the need for such disclosure to be made), or would otherwise adversely affect a financing, acquisition, disposition, merger or other material transaction), and shall use its commercially reasonable best efforts to meet have such registration statement declared effective by the requirements of Form S-3 for so long SEC as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6soon as practicable thereafter. 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, or the Initiating Substantial Holder, as the case may be, The Shareholder shall have the right to select the underwriter or underwriters and manager or managers exercise up to administer one (1) such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the CompanyDemand Registration right.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Cistron Biotechnology Inc)
Demand Registration. (ia) If one On and after the end of the Earn Out Period, the Stockholders’ Representative may in his sole and absolute discretion request in a written notice that the Company file a registration statement under the Securities Act (or more Holders a similar document pursuant to any other statute then in effect corresponding to the Securities Act) covering the registration of any or all Registrable Stock held by the Stockholders; provided, that own an aggregate there must be included in such registration Registrable Stock having a minimum value of 51% Ten Million Dollars ($10,000,000) (based on the then current market price of such Registrable Stock) or more such lesser amount if it constitutes all of the Registrable Securities then outstanding Stock held by such Shareholders participating in the registration (the “Demanding HoldersRegistration Threshold”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or such lesser amount if it constitutes all of the Registrable Stock held by such Shareholders participating in the registration, but in no event less than a minimum value of Five Million Dollars ($5,000,000), if the Company is not eligible to register the sale or other disposition of Registrable Securities on Form S-3 (or a successor form). Following receipt of any notice under this Section 5.1, the Company shall at any time make use its reasonable efforts to cause to be registered under the Securities Act all Registrable Stock that the Stockholders have requested be registered in a written request manner of disposition reasonably acceptable to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”)including but not limited to, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule) under the Securities Act Act.
(a “Shelf Registration”)b) If the Company intends to have the Registrable Stock distributed by means of an underwritten offering the Stockholders shall enter into an underwriting agreement in customary form with the underwriter or underwriters. Any request made pursuant If any Stockholder who intends to this Section 2.2 sell Registrable Securities in the offering disapproves of the terms of the underwriting, such Stockholder may elect to withdraw all its Registrable Stock from the registration by written notice to the Company and the managing underwriter. The underwriters shall be addressed selected by the Company in its sole discretion.
(c) Notwithstanding any provision of this Agreement to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:contrary,
(i) File the registration statement with the Commission as promptly as practicable, and Company shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 5.1 during the period starting with the date of filing by the Company of, and ending on a date 120 days following the effective date of, a registration statement pertaining to a public offering of securities for the account of the Company or on behalf of the selling stockholders under any other registration rights agreement which the Stockholders have been entitled to join pursuant to Section 5.2;
(ii) if the Board determines in good faith that it is suspended or, in the case best interests of a Demand Registrationthe Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition, postponed as permitted by Section 2.1(ii)disposition, strategic alliance or financing transaction or other potential material event involving the Company or (B) to suspend the registration rights set forth herein, the foregoing Company may (1) postpone the filing of any registration pursuant to this Section 5.1 and (2) suspend the rights of any Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that such periods of postponement and suspension may not exceed 120 days in the aggregate during any period of 12 consecutive months; and each Stockholder agrees in consideration of the obligations of the Company set forth herein to maintain any communication by the Company with respect to the postponement or suspension of the any registration pursuant to this Section 5.1 in confidence such that the Company may rely on the safe harbor provisions of Rule 100(b)(2)(ii) of Regulation FD under the Exchange Act with respect to such communications; provided, further, that in the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be extended maintained effective as provided in Section 5.3(a) by the aggregate number of days of by which the Company suspends such suspension or postponementregistration statement; and
(iii) the Company shall not be required to effect a registration pursuant to this Section 5.1 more than one time in any twelve-month period and shall not be obligated to cause any audit to be undertaken in connection with any such registration that the Company is not otherwise required to undertake at that time in connection with its obligations under the Securities Act, the Exchange Act and the rules and regulations thereunder.
2.4. (d) The Company shall not be obligated to effect no and pay for more than three Demand Registrations and such number of Shelf Registrations as may be necessary registrations pursuant to provide each and every Substantial Holder with the right this Section 5.1; provided, that a registration requested pursuant to request one Shelf Registration. For purposes of the preceding sentence, registration this Section 5.1 shall not be deemed to have been effected for purposes of this Section 5.1(d) unless (i) unless a registration statement with respect thereto it has become effectivebeen declared effective by the Commission, (ii) if after it has remained effective for the period set forth in Section 5.3(a), and (iii) the offering of Registrable Stock pursuant to such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by not subject to any stop order, injunction or other order or requirement of the Commission (other than any such stop order, injunction, or other governmental agency or court 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 requirement 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 (i) if a Demand Registration, upon the earlier Commission prompted by any act or omission 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersStock).
Appears in 1 contract
Demand Registration. (a) (i) If one HEI shall have the right, on not more than four occasions in the aggregate, and no more frequently than once during any six-month period, and (ii) the Minority Stockholders as a group shall have the right (though such right need not be jointly exercised by the Minority Stockholders), on not more than two occasions in the aggregate (it being understood and agreed that two or more Holders that own an aggregate Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) a Demand shall at any time make a written request to the Company, the Company shall cause there be deemed to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “single Demand Registration”for all purposes hereof), and each Demanding Holder shall be entitled no more frequently than once during any six- month period, to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 to register for offer and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 sale under the Securities Act (a “Shelf Registration”)"Demand") all or a portion of the Registrable Securities held by such Stockholder, subject to the restrictions set forth herein; provided that no Stockholder shall be entitled to make a Demand hereunder unless the Registrable Securities subject to such Demand represent at least 7% of the aggregate shares of Company Common Stock then issued and outstanding. Any request made As promptly as practicable after the Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 2.2 4.1(a) (a "Demand Notice"), a copy of which shall be addressed have also been delivered to each other Minority Stockholder at the attention of the Secretary of same time as to the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and demanding that the request is Company register for a Shelf Registration pursuant offer and sale under the Securities Act Registrable Securities, subject to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration4.1(b), the Company shall:
shall (i) File the registration statement use all reasonable efforts to file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such form as promptly as practicablethe Company may reasonably deem appropriate (provided that the Company shall not, and shall unless the Company otherwise determines, be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) and, thereafter, (ii) after the filing of an initial version of the Registration Statement, use the Company’s best reasonable efforts to have the registration cause such Registration Statement to be declared effective under the Securities Act as soon promptly as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days practicable after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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 offeringStatement; provided, however, that no Demanding Stockholder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Demanding Stockholder has made an Election. Subject to Section 4.1(b), the Company shall use reasonable efforts to keep each Person Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by such Demanding Stockholder for resales of Registrable Securities for an Effectiveness Period ending on the earlier of (i) 30 days from the Effective Time of such Registration Statement and (ii) such time as all of such securities have been disposed of by the selling securityholders.
(b) The Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to not disclose in the Registration Statement a planned or proposed financing, acquisition or other corporate transaction or other material information, and the Company shall have determined in good faith that such disclosure is not in the best interests of the Company and its stockholders; provided that no one such postponement shall exceed 90 days in any six-month period and all such postponements shall not exceed 180 days in the aggregate. The Company shall advise the Demanding Stockholder of any such determination as promptly as practicable after such determination.
(c) In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities subject to a Demand exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering (provided that, in the event of a joint Demand, the Applicable Securities included shall be allocated pro rata among the Demanding Stockholders on the basis of the relative number of Applicable Securities each such Demanding Stockholder has requested to be included in such Registration).
(d) The Company may include in any registration requested pursuant to Section 4.1(a) hereof other securities for sale for its own account or for the account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Stockholder, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, the Applicable Securities requested to be registered by the Demanding Stockholder and (ii) second, any other securities requested to be included in such Registration.
(e) A Demanding Stockholder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 4.1(b), or (iv) if such Demanding Stockholder is prevented pursuant to Section 4.1(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Stockholder shall nonetheless be deemed to have been effected (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand (A) pursuant to clause (i) of the preceding sentence after the Commission filing fee is paid with respect thereto or (B) pursuant to clause (iv) of the preceding sentence in circumstances where at least 50% of the Applicable Securities requested to be included in such Registration by such Demanding Stockholder could have been included, and in each case, (x) the Company has not availed itself of Section 4.1(b) with respect to such Registration request or (y) the Company has availed itself of Section 4.1(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 4.1(b). If a Demanding Stockholder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Stockholder shall be entitled to participate in such Registration pursuant to Section 4.2, but in such case the Intended Offering Notice shall be required to be given to such Demanding Stockholder at least five business days prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 business days after receipt of the request to withdraw Demand from such Demanding Stockholder and such Demanding Stockholder shall be required to give the Piggy-back Notice no later than 3 business days after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 4.1 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Stockholder, and the other co-lead underwriter shall be selected by the Demanding Stockholder, provided that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Applicable Securities requested to be included in the Registration) of the Demanding Stockholders, and shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities Any additional co-managing underwriters shall be included therein in such offering and selected by the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersCompany.
Appears in 1 contract
Demand Registration. (ia) If one On or more Holders that own an aggregate prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of 51% or more all of the Registrable Securities that are not then outstanding registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders or to make any disclosure contained therein not misleading) substantially the “Demanding Holders”) shall at any time make a written request to Plan of Distribution” attached hereto as Annex A and substantially the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, Selling Stockholder” section attached hereto as the Demanding Holder shall report in writingAnnex B; provided, however, that no request Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be made sold without volume or manner-of-sale restrictions pursuant to this Section 2.1 if within six (6) months prior Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the date Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall notify the Holders via e-mail of such request the effectiveness of a Demand Registration Statement pursuant as promptly as practicable, and shall, if requested, provide the Holders with copies of the final Prospectus to this be used in connection with the sale or other disposition of the securities covered thereby.
(b) Notwithstanding the registration obligations set forth in Section 2.1 shall have been declared effective 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its reasonable best efforts to file an amendment or amendments to the Initial Registration Statement as required by the Commission. Any request made , covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); and subject to the provisions of Section 2(d) with respect to payment of liquidated damages with respect to filing on Form S-3 or other appropriate form; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to this Section 2.1 shall 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be addressed registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the attention of the Secretary of the Company, and shall specify Commission to maximize the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement unless otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request directed in writing that all of such Holder’s by a Holder as to its Registrable SharesSecurities, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf registered on such Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallStatement will be reduced as follows:
(i) File First, the registration statement with the Commission as promptly as practicable, and Company shall use the Company’s best efforts reduce or eliminate any securities to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete be included other actions that are reasonably necessary to effect a registered public offering.than Registrable Securities;
(ii) Use Second, the CompanyCompany shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders); and
(iii) Third, the Company shall reduce Registrable Securities represented by Shares (applied to the Holders on a pro rata basis based on the total number of unregistered Shares held by such Holders). In the event of a reduction hereunder, the Company shall give the Holder at least five (5) Trading Days’ prior written notice along with the calculations as to such ▇▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, then the Company shall use its reasonable best efforts to keep file with the relevant Commission, as promptly thereafter as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statement Continuously Effective statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(xd) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if a Demand Registrationthe Company files the Initial Registration Statement without affording the Lead Investor the opportunity to review and comment on the same as required by Section 3(a) herein, for up the Company shall be deemed to two hundred seventy (270) days or until such earlier date have not satisfied this clause as of which the Filing Date (i)), (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified in writing by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, (iii) a Registration Statement registering for resale all of the Registrable Securities under is not declared effective by the Demand Commission by the Effectiveness Date of the Initial Registration statement shall have been disposed Statement or (iv) after the effective date of in the manner described in the a Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the effectiveness Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowed Delay), for more than fifteen (15) consecutive calendar days or more than an aggregate of twenty (20) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iii), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iv) the date on which such fifteen (15) or twenty (20) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a registration penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 12.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section 2 in full within seven Trading Days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is suspended orpermitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. The parties agree that notwithstanding anything to the contrary herein or in the case of a Demand RegistrationPurchase Agreement, postponed as permitted by Section 2.1(ii), the foregoing period no liquidated damages shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected payable (i) unless if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a registration statement with respect thereto has become effectivewritten opinion letter to such effect, addressed and reasonably acceptable to the Holder and the Company’s transfer agent, if any, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered to a Holder with respect to an Event caused by any stop order, injunction action of such Holder or other order or requirement failure of the Commission or other governmental agency or court for such Holder to take any reason not attributable action that such ▇▇▇▇▇▇ is required to the Selling Holders and such interference is not thereafter eliminatedtake hereunder, or (iii) if the conditions to closing specified a Holder in the underwriting agreement, if any, entered into in connection with such event it is unable to lawfully sell any of its Registrable Securities because of possession of material non-public information.
(e) If Form S-3 is not available for the registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If resale of Registrable Securities hereunder, 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 (i) if a Demand Registration, upon register the earlier of (x) the date as of which all resale 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 two hundred seventy (270) days, on another appropriate form and (ii) if a Shelf Registration, upon undertake to register the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be Registrable Securities on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2as soon as such form is available, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) provided that the Company shall file a maintain the effectiveness of the Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file then in effect until such time as a Registration Statement on Form S-3 with respect to covering the Registrable Securities covered has been declared effective by the Registration Statement on Form S-1 or other form filed pursuant Commission.
(f) Notwithstanding anything to Section 2(i) (and include the contrary contained in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formthis Agreement, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective in no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances event shall the Company be obligated permitted to file name any Holder or affiliate of a Registration State on Holder as any form other than Form S-3 to fulfill ist obligations under Section 2.2underwriter without the prior written consent of such Holder.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding Commencing ninety (the “Demanding Holders”90) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to days following the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure ofhereof, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Requesting Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall may make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request specifying that it is being made pursuant to this Section 2.2 shall be addressed 2) that the Company file a registration statement under the 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the attention of 1933 Act) covering the Secretary of the Company, and shall specify the number registration of Registrable Securities to be registeredStock. In s▇▇▇ ▇▇▇▇▇, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the ▇▇▇ Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy within five (2705) days or until thereafter notify in writing all other Holders of Registrable Stock of such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statementrequest, and (y) if a Shelf Registrationuse its reasonable efforts to cause to be registered under the 1933 Act all Registrable Stock that the Requesting Holders and such other Holders have, for three yearswithin fifteen (15) days after the Company has given such notice, requested be registered. Notwithstanding the foregoing, the Company shall not be obligated to file the above described registration statement if the aggregate proceeds from the registration would reasonably be expected to be less than $300,000.
(b) If the Requesting Holders intend to distribute the Registrable Stock covered by their request by means of an underwritten offering, they shall so advise the Company as a part of their request pursuant to Section 2(a) above, and the Company shall include such information in the written notice referred to in clause (x) of Section 2(a) above. In such event, the Holder's right to include its Registrable Stock in such registration shall be conditioned upon such Holder's participation in such underwritten offering and the inclusion of such Holder's Registrable Stock in the underwritten offering to the extent provided in this Section 2. All holders proposing to distribute Registrable Stock through such underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters. Such underwriter or underwriters shall be selected by a majority in interest of the Requesting Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; PROVIDED, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any reason or all of the effectiveness conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and PROVIDED FURTHER, that no holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Stock of such Holder and such Holder's intended method of distribution and any other representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock requested to be registered pursuant to this Section 2 advises the Requesting Holders in writing that in its opinion marketing factors require a limitation of the number of shares to be underwritten, the Requesting Holders shall so advise all Holders of Registrable Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in such underwritten offering shall be allocated among all such Holders, including the Requesting Holders, in proportion (as nearly as practicable) to the amount of Registrable Stock requested to be included in such registration by each Holder at the time of filing the registration statement; PROVIDED, that in the event of such limitation of the number of shares of Registrable Stock to be underwritten, such registration shall not count against the number of demand registrations the Requesting Holders are permitted to request hereunder. If any Holder of Registrable Stock disapproves of the terms of the underwriting, such Holder may elect to withdraw by written notice to the Company, the managing underwriter and the Requesting Holders. The securities so withdrawn shall also be withdrawn from registration.
(d) Notwithstanding any provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 2 is suspended orduring the period starting with the fourteenth (14th) day immediately preceding the date of an anticipated filing by the Company of, and ending on a date ninety (90) days following the effective date of, a registration statement pertaining to an underwritten public offering of securities for the account of the Company; PROVIDED, that the Company shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and PROVIDED FURTHER, that the case Company's estimate of a Demand Registration, postponed as permitted by Section 2.1(ii)the date of filing such registration statement shall be made in good faith.
(e) Subject to the additional terms contained herein, the foregoing period Requesting Holders shall be extended by the aggregate entitled to an unlimited number of days of such suspension or postponement.
2.4registrations on Form S-3, but shall only be allowed three demands that utilize forms other than Form S-3. The Company shall use Form S-3 for registrations pursuant hereto if such form is available to the Company. If federal law precludes the use of Form S-3, the Company shall use whatever form is necessary; however, the Company shall not be obligated to effect no use such non Form S-3 forms more than a total of three Demand Registrations and such number of Shelf Registrations as may be necessary times, unless increased pursuant to provide each and every Substantial Holder with the right Section 2(c) hereof; PROVIDED, that a registration requested pursuant to request one Shelf Registration. For purposes of the preceding sentence, registration this Section 2 shall not be deemed to have been effected for purposes of this Section 2(e), unless (i) unless a registration statement with respect thereto it has become effectivebeen declared effective by the Commission, (ii) if after it is a shelf registration, it has remained effective for the period set forth in Section 3(b), (iii) the offering of Registrable Stock pursuant to such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by not subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the 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 any such action prompted by reason of a failure on the part any act or omission 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 (i) if a Demand 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 (yiv) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition limitation of the number of shares of Registrable Securities in accordance with the intended method or methods of disposition specified in the request Stock to be underwritten has been required pursuant to Section 2.1(i2(c) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2hereof.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Applied Voice Recognition Inc /De/)
Demand Registration. At any time (i) If one after Closing Date or more Holders (ii) before the receipt by Purchaser and the Company of an opinion of counsel reasonably satisfactory to both Purchaser and the Company that own an aggregate of 51% or more registration of the Registrable Shares under the Securities Act is not then required in order for Purchaser to effect a public offering, Purchaser shall have the right to make two requests of the Company in writing to register under the Securities Act at least 15% of the outstanding shares of common stock beneficially owned by Purchaser (shares subject to such request hereunder being referred to as the “Demanding Holders”) "Subject Stock"), and the Company shall at any time make a written request use best efforts to cause such Subject Stock to be registered under the CompanySecurities Act as soon as reasonably practicable so as to permit promptly the sale thereof, and in connection therewith, the Company shall cause there to be filed with prepare and file, on such appropriate form as the Commission Company in its discretion shall determine, a registration statement meeting under the Securities Act to effect such registration. Purchaser undertakes 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 Securities Act (a “Demand Registration”), Commission and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number obtain any desired acceleration of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the effective date of such request a Demand Registration Statement pursuant registration statement. Notwithstanding the foregoing, the Company (i) shall not be obligated to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities cause any special audit to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
undertaken in connection with any such registration (ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days a reasonable period of time, but not in excess of 60 days, the filing of any Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, by the Company if the Board determinesCompany is, at such time, conducting or about to conduct an underwritten public offering of equity securities (or securities convertible into equity securities) and is advised in writing by its managing underwriter or underwriters (with a copy to Purchaser) that such offering would in its good faith or their opinion be adversely affected by the registration so requested and (iii) shall be entitled to postpone for a reasonable judgment (with the concurrence period of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) time the filing of any other Demand Registration registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever by the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, if the Company shall determines, in its reasonable judgment, that such registration and offering would interfere with any financing, acquisition, corporate reorganization or other material transaction involving the Company or that it would require the Company to disclose material non-public information that it deems advisable not to disclose and promptly give gives Purchaser written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 Holdersdetermination. If the Company shall have complied with its obligations under this Agreement, a right to demand so postpone the filing of a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registrationstatement, 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, Purchaser shall have the right to select withdraw the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents request for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable registration by giving written notice to the Company.
2.7. Whenever Company within 30 days after receipt of the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders notice of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing thatpostponement and, in its opinionthe event of such withdrawal, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority request shall not be counted for purposes of the Registrable Securities proposed requests for registration to be sold therein by them, shall decide which class of Registrable Securities shall be included therein Purchaser is entitled to in such offering and the related registration, and the other class shall be excluded; and this paragraph (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersa).
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Boca Research Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate Subject to the provisions hereof, after the Restricted Term, the Investor and any Permitted Transferee of 51% or more the Investor (each a “Holder”) holding, collectively, a majority of the Registrable Securities then outstanding shall have the right to require the Company to file a Registration Statement registering for sale all or part of the Shares held by or issuable to them (collectively, the “Demanding HoldersRegistrable Securities”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(ian underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering”).
, and (iiiii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable Law. The Company shall be entitled use commercially reasonable efforts to postpone for up to one hundred twenty effect such registration (120including, without limitation, appropriate qualification under applicable blue sky or other state securities Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or has been so requested to register as soon as practicable (and in any of its wholly owned subsidiaries and case by the Company promptly gives the Demanding Holders notice of such determinationapplicable Filing Date); provided, however, that the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration under this Section 2.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $25,000,000. The Holders shall be entitled to require the Company to effect two (2) Demand Registrations under this Agreement.
(b) If the offering of the Registrable Securities pursuant to such Demand Registration is an Underwritten Offering, (i) the Company shall select the underwriter(s) of the Underwritten Offering, subject to the approval of the Holders of a majority of the Registrable Securities to be sold in the Underwritten Offering, such approval not to be unreasonably withheld, conditioned or delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a Shelf Registrationselling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company shall:to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary Prospectus, final Prospectus, summary Prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) give written advice to the Company of the number of securities to which such registration should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) File the registration statement with the Commission as promptly as practicable, so advise all Holders of Registrable Securities to be included in such Underwritten Offering and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use include in such registration the Company’s best efforts number of securities requested to keep the relevant be included in such registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as by all Holders of which all the Registrable Securities under to be included in such Underwritten Offering, pro rata on the Demand Registration statement shall have been disposed basis of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days Registrable Securities requested to be included by each such Holder, and, subject to the conditions set forth in Section 2.8 hereto, on a pari passu basis with the holders of such suspension or postponementcontractual registration rights provided under (i) the Investor Agreement, dated as of April 2, 2018, by and between the Company and Takeda Pharmaceutical Company Limited (the “Takeda Holders”) and (ii) the Share Purchase Agreement by and between the Company and C.P. Pharmaceuticals International C.V. dated as of May 6, 2016 (the “Pfizer Holders”).
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, (d) A registration shall will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least seventy five percent (i75%) unless a of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminatedadministrative agency, or (iii) if any court prevents or otherwise limits 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all sale of the Registrable Securities included therein shall have been disposed pursuant to the registration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement and is not cured within forty five (45) days thereof, and (ii) in each case less than seventy five percent (75%) of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which then such Demand Registration shall registration will be deemed not to have been Continuously Effective effected for purposes of the last sentence of Section 2.1(a). If (i) a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 2.1 is deemed not to have been effected as a Demand Registration or (ii) the disposition registration requested pursuant to this Section 2.1 does not remain continuously effective until the completion of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed distribution by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use Holders of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 2.1 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 2.1(d), shall decide which class each Holder of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative permitted voluntarily to withdraw all or Agent advises each such Selling Holder in writing that, in any part of its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within Registrable Securities from a price range acceptable Demand Registration at any time prior to the Majority Selling Holderscommencement of marketing of such Demand Registration, securities provided that such registration nonetheless shall be included in such offering and the related registration, to the extent count as a Demand Registration for purposes of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderslast sentence of Section 2.1(a).
Appears in 1 contract
Demand Registration. (ia) If For a period of 270 days (plus any additional days during which a registration has been postponed pursuant to Section 2.1(f) hereof) from and after the date that is one or more Holders that own an aggregate (1) year from the date of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Companythis Agreement, the Company shall cause there to be 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 the Company effect one (subject to Section 2.71) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six demand registration on Form S-3 (6) months prior to the date of such request a Demand Registration Statement pursuant extent available to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, or any applicable substitute, replacement or successor form that may be adopted by the SEC) of the Registrable Securities then owned of record and beneficially by such Holder. A request for such demand registration (a "Registration Request") must be made in writing by the Holder.
(b) The Company shall specify use its best efforts to cause the Registrable Securities specified in the Registration Request to be registered as soon as reasonably practicable so as to permit the sale thereof and, in connection therewith, shall, within thirty (30) days after the Holder provides the Company with such notice, prepare and file a registration statement with the SEC under the Securities Act to effect such registration.
(c) Such registration statement shall contain such required information pursuant to the rules and regulations promulgated under the Securities Act and such additional information as deemed necessary by the managing underwriter or, if there is no managing underwriter, as deemed under the Securities Act to be necessary by the Company.
(d) In connection with the preparation of the registration statement, the Holder shall:
(i) Specify the number of Registrable Securities intended to be registered, offered and sold by the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).Holder;
(ii) The Express the Holder's intention to offer or cause the offering of such shares for distribution;
(iii) Describe the nature or method of the proposed offer and sale thereof by the Holder; and
(iv) Undertake 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 desired acceleration of the effective date of such registration statement.
(e) Notwithstanding the foregoing, if the Company shall furnish to the Holder a certificate signed by a duly authorized officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company for such registration statement to be filed on or before the date such filing would be required, then the Company shall be entitled to postpone the filing of the registration statement for up to one hundred twenty ninety (12090) days days; provided, that no period of postponement shall be counted in tolling the filing 270-day period referred to in Section 2.1(a) above.
(f) If a registration has become effective but is withdrawn before completion of any Demand Registration statement otherwise required the offering contemplated thereby because of adverse business developments at the Company that were not known to be prepared and filed pursuant the Holder when it requested that the Company initiate such registration proceedings, or which developments came into existence subsequent to such request, such registration shall not count as the demand registration referred to in the first sentence of this Section 2.1, if the Board determines, in its good faith reasonable judgment .
(with the concurrence g) If a registration is filed on behalf of the managing underwriter, if any), that Holder and such registration and is withdrawn at the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, request of the Holder for any financing, acquisition or reorganization involving reason other than adverse business developments at the Company or any that were not known to the Holder, such registration shall count as the demand registration referred to in the first sentence of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the this Section 2.1.
(h) The Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect cause the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of any other shares of Common Stock to become effective (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File other than the registration statement of an employee stock plan, or registration in connection with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(iiany Rule 145 or similar transaction) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason during the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponementrequested hereunder.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Electronic Game Card Inc)
Demand Registration. (i) If one At any time after the consummation of an Initial Public Offering, (A) if no Automatic Exchange Event has occurred, upon each notice to the Company by the ▇▇▇▇▇ Foundation or more Holders that own the New York Trust, or (B) if an aggregate Automatic Exchange Event (including without limitation a Qualified Public Offering) has occurred, upon each notice to the Company by the holders of 51% or more Registrable Securities then constituting at least a majority of the Registrable Securities then outstanding Securities, requesting, in the case of either (A) or (B), the “Demanding Holders”) shall at any time make registration of a written request to the Companyspecified number of Registrable Securities, the Company shall cause there to be filed shall, as promptly as practicable and in any event not later than 90 days after the Company's receipt of such notice, prepare and file with the Commission under the Securities Act a registration statement Registration Statement with respect to the Registrable Securities to which such notice relates, and shall use its reasonable best efforts to cause such Registration Statement to be declared effective at the earliest practicable date and to prepare and make available a Prospectus meeting the requirements of Section 10(a) of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject providing for the method of disposition determined pursuant to Section 2.71(a)(iii) all or for such number of such Demanding Holder’s Registered Sharesperiod as may be required by the Securities Act, as but in no event beyond the Demanding Holder shall report period reasonably required by the underwriter(s) in writingany Underwritten Offering permitted pursuant to Section 7; provided, howeverthat the Company will not be required to effect any such registration within the period beginning on the effective date of a Registration Statement filed by the Company on its behalf covering a firm commitment Underwritten Offering and ending on the later of (A) 90 days after such effective date and (B) the expiration of any lock-up period required by the underwriters, if any, in connection therewith; and provided, further, that no request the Company shall use its reasonable best efforts to, and shall cause each underwriter participating in such registration and disposition to use its reasonable best efforts to, cause any registration and disposition of Registrable Securities requested pursuant to Section 1(a)(i)(A) to constitute a Qualified Public Offering. Two requests for registration may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company1(a)(i); provided, and shall specify that the number of Registrable Securities to such permissible requests shall be registered, the intended methods of disposition thereof increased as set forth in Sections 1(c)(ii)(A) and that the request is for a Demand Registration pursuant to this Section 2.1(i1(c)(iv).
(ii) The At any time that is both after the fifth anniversary of the Closing Date and prior to the consummation of an Initial Public Offering, (A) if no Automatic Exchange Event has occurred, upon each notice to the Company by the ▇▇▇▇▇ Foundation or the New York Trust, or (B) if an Automatic Exchange Event (other than a Qualified Public Offering) has occurred, upon each notice to the Company by the holders of Registrable Securities then constituting at least a majority of the Registrable Securities, requesting, in the case of either (A) or (B), the registration of a specified number of Registrable Securities, the Company shall, as promptly as practicable and in any event not later than 90 days after the Company's receipt of such notice, prepare and file with the Commission under the Securities Act a Registration Statement with respect to the Registrable Securities to which such notice relates, and shall use its reasonable best efforts to cause such Registration Statement to be entitled declared effective at the earliest practicable date and to postpone prepare and make available a Prospectus meeting the requirements of Section 10(a) of the Securities Act and providing for up the method of disposition determined pursuant to one hundred twenty Section 1(a)(iii) for such period as may be required by the Securities Act, but in no event beyond the period reasonably required by the underwriter(s) in any Underwritten Offering permitted pursuant to Section 7; provided, that the Company will not be required to effect any such registration within the period beginning on the effective date of a Registration Statement filed by the Company on its behalf covering a firm commitment Underwritten Offering and ending on the later of (120A) 90 days after such effective date and (B) the filing expiration of any Demand Registration statement otherwise lock-up period required to be prepared and filed pursuant to this Section 2.1, if by the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriterunderwriters, if any), that such registration in connection therewith; and the Transfer or Registrable Securities 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, howeverfurther, that the Company shall not have postponed use its reasonable best efforts to, and shall cause each underwriter participating in such registration and disposition to use its reasonable best efforts to, cause any registration and disposition of Registrable Securities requested pursuant to Section 1(a)(ii)(A) to constitute a Qualified Public Offering. One request for registration may be made pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i1(a)(ii).
(iii) Whenever the Company shall have received If a demand request for registration is made pursuant to Section 2.1(i1(a)(i) to effect the registration of any Registrable Sharesor 1(a)(ii), the Company shall promptly give written notice of such proposed registration request to all Holders. Any holders of Registrable Securities who did not participate in such Holder mayrequest; and each of such holders shall have the right, by giving written notice to the Company promptly (and in any event within twenty (20) 30 days after receipt of such noticenotice is given by the Company), to join in such request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be and to have included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required Statement to be filed by the Company pursuant to such request such number of Registrable Securities as such holder shall specify in such notice; and the method of distribution of the Registrable Securities to be included in such Registration Statement under Section 1(a)(i) or 1(a)(ii) shall be selected by the holders of a majority of the Registrable Securities with respect to which the Commission request for registration was made under Section 1(a)(i) and this Section 1(a)(iii), collectively, or under Section 1(a)(ii) and this Section 1(a)(iii), collectively;
(iv) The Company may delay the filing of a Registration Statement requested pursuant to this Section 1(a) if, in its reasonable judgment, (A) the filing of such Registration Statement at such time would adversely affect a timely manner so as proposed financing, reorganization or recapitalization, or pending negotiations relating to remain eligible a merger, consolidation, acquisition or become eligiblesimilar transaction, or otherwise adversely affect the Company; or (B) financial statements meeting the requirements of Regulation S-X are not available at such time because of any such pending proposal or negotiations; provided, however, that the right of the Company pursuant to this subsection (iv) to delay the filing of a Registration Statement shall not extend for more than 135 days from the date that notice is given pursuant to Section 1(a)(i) or 1(a)(ii), as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2requesting registration.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (National Auto Finance Co Inc)
Demand Registration. (ia) If one At any time prior to the seventh anniversary of the closing date of the Public Offering, upon written notice from a Holder in the manner set forth in section 12(h) hereof requesting that the Company effect the registration under the Securities Act of any or more Holders that own an aggregate of 51% or more all of the Registrable Securities then outstanding (held by such holder, which notice shall specify the “Demanding Holders”) shall at any time make a written request to the Companyintended method or methods of disposition of such Registrable Securities, the Company shall cause there use its best efforts to be filed with effect, in the Commission a manner set forth in Section 5, the registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of for disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed intended method or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registrationstated in such request, the Company shallPROVIDED that:
(i) File if, within 5 business days of receipt of a registration request pursuant to this Section 2 (a), the registration statement Company is advised in writing (with a copy to the Commission as promptly as practicable, and shall use Holder requesting registration) by the Company’s best efforts to have managing underwriter of the registration declared effective under the Securities Act as soon as reasonably practicableproposed offering described below that, in each instance giving due regard such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by the Company that had been contemplated by the Company prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary Company shall not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 2(a) until the earliest of (A) the abandonment of such offering, (B) 90 days after the completion of such offering, (C) the termination of any "hold back" period obtained by the underwriter(s) of such offering from any person in connection therewith or (D) 180 days after receipt by the Holder requesting registration of the managing underwriter's written opinion referred to above in this subsection (i));
(ii) if, while a registration request is suspended or, in the case of a Demand Registration, postponed as permitted by pending pursuant to this Section 2.1(ii2(a), the foregoing period shall be extended by Company has determined in good faith that (A) the aggregate number filing of days a registration statement would require the disclosure of such suspension material information that the Company has a bona fide business purpose for preserving as confidential or postponement.
2.4. The (B) the Company then is unable to comply with SEC requirements applicable to the requested registration, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or the Company is able to so comply with applicable SEC requirements, as the case may be, and (2) 45 days after the Company makes such good-faith determination, PROVIDED that the Company shall not be permitted to delay a requested registration in reliance on this clause (ii) more than once in any 24 month period; and
(iii) the Company shall not be obligated to effect no more than three Demand Registrations and file a registration statement relating to a registration request pursuant to this Section 2: (A) within a period of 6 months after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a); (B) if such registration request is for a number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes Registrable Securities less than 7.5% of the preceding sentence, issued and outstanding common equity of the Company (unless the Holders making the demand own 5% or more of the issued and outstanding common equity of the Company in the aggregate and the demand is for all their outstanding Registrable Securities) or (C) if Holders in the aggregate own less than 5% of the issued and outstanding common equity of the Company.
(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 (iand, therefore, not requested for purposes of subsection 2(a)) (A) unless a the registration statement with respect thereto filed in connection therewith has become effective, (iiB) if after it has become effective such registration statement has become effective, such registration 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 Commission SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, 90% or more of the Registrable Securities requested to be registered cannot attributable to be completely distributed in accordance with the Selling Holders and such interference is not thereafter eliminated, plan of distribution set forth in the related registration statement or (iiiC) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement entered into in connection with such registration are not satisfied or waived, (other than by reason of some acts or omission by such Holder) or waived by the underwriters;
(ii) a failure on registration requested by a Holder pursuant to this Section 2 and later withdrawn at the part request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2 (a)), whether withdrawn by the Selling Holders. If Holder prior to or after the effectiveness of such requested registration, except that if such request is withdrawn by a Holder prior to the filing of a registration statement with the SEC, such Holder can require the Company to disregard for purposes of Section 2 (a) (iii) one such requested registration in any six month period; and
(iii) nothing herein shall have complied modify Holder's obligation to pay the Registration Expenses incurred in connection with its obligations under this Agreement, a right to demand a any withdrawn registration.
(c) In the event that any registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3involve, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 whole or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorsin part, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, a Holder shall have the right to select designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter or underwriters and manager or managers to administer of such underwritten offering or and the placement agent or agents Company shall have the right to designate one underwriter reasonably satisfactory to the Holder 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 a Holder pursuant to Section 2(a); PROVIDED that the Company shall not have the right to cause the registration of such agented offering; provided, however, that each Person so selected shall be reasonably acceptable additional securities if such Holder is advised in writing (with a copy to the Company.
2.7. Whenever ) by the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing managing underwriter that, in its such firm's good faith opinion, the inclusion registration of more than one class of Registrable Securities such additional securities would materially and adversely affect such offering, the Demanding Holders holding at least a majority offering and sale of the Registrable Securities proposed to be sold therein then contemplated by themsuch Holder, shall decide which class of Registrable Securities except that Code shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative required to include shares of ▇▇▇▇▇▇ ▇▇▇▇ or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, ▇▇▇▇▇▇ ▇▇▇▇▇ to the extent of required by their Executive Securities Agreements as in effect on the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersdate hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Beacon Roofing Supply Inc)
Demand Registration. (a) Except as provided in Section 2.2(b) below, upon the written request of the Holder, which request shall specify the Registerable Securities so requested to be registered by Holder, the Proposed Amount thereof and the intended method of disposition by Holder, the Company will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of the resale of the Proposed Amount of Registerable Securities, for disposition in accordance with the intended method of disposition stated in such request; provided, however that (i) If one or more Holders that own an aggregate of 51% or more if in the good faith judgment of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to Board of Directors of the Company, such registration would be detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall cause there furnish to be filed with the Commission Holder a registration statement meeting the requirements certificate signed by an executive officer of the Securities Act (Company that the Board of Directors of the Company has made such a “Demand Registration”)determination and that it is, and each Demanding Holder therefore, necessary to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such registration would be detrimental, provided that the Company may not defer the filing for a period of more than 120 days after receipt of the request of the Holder. The Company shall be entitled to have included therein include in any registration statement filed pursuant to this Section 2.2: (subject A) securities of the Company held by any other security holder of the Company, and (B) in an underwritten public offering, securities of the Company to Section 2.7be sold by the Company for its own account, except as and to the extent that (x) all in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Registerable Securities to be sold by the Holder or (y) in the reasonable opinion of the Holder (if such number method of disposition is not an underwritten public offering), such Demanding Holder’s Registered Shares, as inclusion would adversely affect the Demanding Holder shall report in writingprice at which such Registerable Securities may be sold pursuant to the plan of distribution; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of if, after such request a Demand Registration Statement pursuant to this Section 2.1 shall have registration statement has been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registeredfiled, the intended methods of disposition thereof and managing underwriter believes that the request is for a Demand Registration pursuant inclusion of all securities requested to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after proposed underwritten public offering would adversely affect the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention marketing of the Secretary of the Company, and shall specify the number of Registrable Registerable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registrationdistribution that is not an underwritten public offering, postponed as permitted if the Holder reasonably believes that the inclusion of all securities requested to be included in such registration statement would adversely affect the price at which the Registerable Securities may be sold pursuant to the plan of distribution, then the aggregate amount of securities to be offered by Section 2.1(ii), the foregoing period Company and such other security holders of the Company shall be extended reduced so as to permit the offering of all Registerable Securities requested by the aggregate number of days of Holder without such suspension or postponementadverse effects.
2.4. (b) The Company shall not be obligated to take any action to effect no more than three Demand Registrations any registration requested by the Holder pursuant to Section 2.2(a) hereof (i) after the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (ii) for a period of two (2) years after the Company has effected one such registration pursuant to Section 2.2(a) hereof and such number of Shelf Registrations as may be necessary registration has been declared or ordered effective, such two year period to provide each and every Substantial Holder with commence on the right to request one Shelf Registration. For purposes date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the preceding sentenceexpiration date of the Warrant.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto has become effectiveby reason of the refusal of Holder to proceed shall be deemed to have been effected by the Company unless the Holder shall have elected to pay all Company Registration Expenses in connection with such registration, (ii) if after it has become effective such registration statement has become effective, such registration 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 Commission SEC or other governmental agency or court for any reason not attributable to other than a misrepresentation or an omission by the Selling Holders and such interference is not thereafter eliminatedHolder, or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order some wrongful act or similar orderomission, or proceedings for such an orderact or omission in bad faith, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2Holder.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (ia) If one One or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) Requesting Shareholders shall at any time be entitled to make a written request to the Company, of the Company shall cause there to be filed with the Commission (a “Demand”) for registration statement meeting the requirements of under the Securities Act of an amount of Registrable Securities that, in the aggregate taking into account all of the Requesting Shareholders, equals or is greater than the Registrable Amount (a “Demand Registration”)) and thereupon the Company will, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7the terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the offer and sale of the Registrable Securities which the Company has been so requested to register by the Requesting Shareholders for disposition in accordance with the intended method of disposition stated in such Demand;
(ii) all or such number other Registrable Securities which the Company has been requested to register pursuant to Section 2.1(b); and
(iii) all equity securities of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report Company which the Company may elect to register in writing; provided, however, that no request may be made connection with any offering of Registrable Securities pursuant to this Section 2.1 if within six (6) months prior 2.1; all to the date of such request a Demand Registration Statement pursuant extent necessary to this Section 2.1 shall have been declared effective by permit the Commission. Any request made pursuant to this Section 2.1 shall be addressed to disposition (in accordance with the attention intended methods thereof) of the Secretary of Registrable Securities and the Companyadditional Shares, and if any, to be so registered.
(b) Each Demand shall specify specify: (i) the aggregate number of Registrable Securities requested to be registeredregistered in such Demand Registration, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing intended method of any disposition in connection with such Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1Registration, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration then known and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received identity of the Requesting Shareholder (or Requesting Shareholders). Within five (5) business days after receipt of a demand pursuant to Section 2.1(i) to effect the registration of any Registrable SharesDemand, the Company shall promptly give written notice of such proposed registration Demand to all Holdersother Shareholders, if any. Any Subject to Section 2.1(h), the Company shall include in the Demand Registration covered by such Holder may, Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within twenty ten (2010) days after receipt the Company’s notice required by this paragraph has been mailed. Such written request shall comply with the requirements of such noticea Demand as set forth in this Section 2.1(b).
(c) Demand Registrations shall be on (i) if option (ii) and (iii) below are not available, request in writing that all of such Holder’s Registrable Shares, Form S-1 or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company similar long-form registration (the “Initiating Substantial HolderLong-Form Registration”), shall be entitled to have all (ii) if option (iii) below is not available, Form S-3 or any number similar short form registration, if such short form registration is then available to the Company, or (iii) Form S-3ASR if the Company is, at the time a Demand is made, a Well-Known Seasoned Issuer (a Demand Registration under each of such Initiating Substantial Holder’s Registrable Securities included clauses (ii) and (iii), a “Short-Form Registration”), in a registration with the Commission each case, in accordance compliance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under and in the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention form of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and registration statements that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement has customarily prepared and filed with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, SEC for up to two hundred seventy (270) days or until such earlier date as issuances of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4its Shares. The Company shall not be obligated required to effect no more than three two Long-Form Registrations per fiscal year.
(d) Effective Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration A Demand Registration shall not be deemed to have been effected effected:
(i) unless a registration statement with respect thereto has become effective, been declared effective by the SEC and remains effective in compliance with the provisions of the Securities Act and the laws of any U.S. state or other jurisdiction applicable to the disposition of Registrable Securities covered by such registration statement until such time as all of such Registrable Securities shall have been disposed of in accordance with such registration statement or there shall cease to be any Registrable Securities;
(ii) if if, after such registration statement it has become effective, such registration 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 Commission SEC or other governmental agency Governmental Entities or court for any reason not attributable to the other than a violation of applicable law solely by any Selling Holders Shareholder and such interference is has not thereafter eliminated, or become effective;
(iii) if if, in the case of an Underwritten Offering, the conditions to closing specified in an underwriting agreement applicable to the underwriting agreement, if any, entered into in connection with such registration Company are not satisfied or waived, waived other than by reason of a any breach or failure on the part of the by any Selling Holders. If Shareholder; or
(iv) if the Company shall have complied with its obligations effects a postponement, declares a Suspension Period or similarly delays the exercise of rights under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of Agreement pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified terms in the request pursuant to Section 2.1(i) paragraph below or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use terms of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment)this Agreement generally. Notwithstanding the foregoing, the Company shall not be obligated to (i) maintain the effectiveness of a Long-Form Registration, filed pursuant to a Demand Registration, for a period longer than 75 days or (ii) effect any Demand Registration (A) within six (6) months of the effective date of a registration statement with respect to a “firm commitment” Underwritten Offering in which all Piggyback Sellers were given “piggyback” rights pursuant to Section 2.2 (and at least 50% of the number of Registrable Securities requested by such Piggyback Sellers to be included in such Demand Registration were included), (B) within three (3) months of the effective date of a registration statement with respect to any other Demand Registration, (C) within 90 days from the date on which a Marketed Underwritten Offering was priced or (D) if, in the reasonable judgment of the Board, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or financial information, provided that the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long obtain such financial statements or financial information as any Registrable Securities remain outstanding and under no circumstances shall promptly as practicable. In addition, the Company shall be obligated entitled to file a Registration State on any form other than Form S-3 postpone (upon written notice to fulfill ist obligations under Section 2.2.
2.6. 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, Shareholders) the Majority Selling Holders, filing or the Initiating Substantial Holdereffectiveness of a registration statement for any Demand Registration (but no more than twice in any period of twelve (12) consecutive months and in no event for more than an aggregate of one-hundred twenty (120) days in any three-hundred sixty-five (365) consecutive day period) if the Board determines in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as the case may beconfidential, 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; provided, however, that each Person so selected such postponement shall be reasonably acceptable to the Company.
2.7. Whenever terminate at such time that such information is no longer material, non-public information or the Company shall effect no longer has a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if bona fide business purpose for preserving such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersinformation as confidential.
Appears in 1 contract
Demand Registration. (ia) If one Upon written notice from a Holder of Registrable Securities in the manner set forth in Section 12(g) hereof requesting that the Company effect the registration under the Securities Act of any or more Holders that own an aggregate of 51% or more all of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated held by such Holder, be included in which notice shall specify the registration.
2.2. On intended method or after the date methods of this Agreement each Substantial Holder that shall make a written request to disposition of such Registrable Securities, the Company will use its best efforts to effect (at the “Initiating Substantial Holder”), shall be entitled to have all or any number earliest practicable date) the registration under the Securities Act of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission for disposition in accordance with the Securities Act for intended method or methods of disposition stated in such request (including, but not limited to, an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act (a “Shelf Registration”). Any request made pursuant "Rule 415 Offering") if the Company is then eligible to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of register such Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration on Form S-3 (or a Shelf Registrationsuccessor form)), the Company shallexcept that:
(i) File if, after the Primary EDS Ownership Reduction, upon receipt of a registration statement request pursuant to this Section 2(a), the Company is advised in writing setting forth specific reasons (with a copy to the Commission as promptly as practicableperson requesting registration pursuant to this Section 2(a)), and shall use by a nationally recognized independent investment banking firm selected by the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicableCompany that, in each instance giving due regard such firm's opinion, a registration at the time and on the terms requested would materially and adversely affect any underwritten public equity financing by the Company that had been contemplated by the Company prior to receipt of notice requesting registration pursuant to this Section 2(a) and that had been planned to be completed within 90 days of such notice (a "Transaction Blackout"), the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary Company shall not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 2(a) until the earliest to occur of (A) the abandonment of such financing, (B) 90 days after the completion of such financing, (C) the termination of any "hold back" or "lock up" period obtained by the underwriter(s) selected by the Company from any person in connection with such financing or (D) 165 days after receipt by the Holder requesting registration of written notice of such Transaction Blackout (together with the copy of the investment banking firm opinion referred to above in this subsection (i)) (the written notice of such Transaction Blackout and a copy of the investment banking firm opinion must be given to the Holder of Registrable Securities requesting registration pursuant to this Section 2(a) within 10 days of receipt of such the registration request);
(ii) if, after the Primary EDS Ownership Reduction, while a registration request is suspended orpending pursuant to this Section 2(a), counsel for the Company determines in good faith that (A) the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or (B) the Company then is unable to comply with SEC requirements, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earliest to occur of (1) the date upon which such material information is disclosed to the public or ceases to be material or the Company is able to so comply with SEC requirements, as the case may be, or (2) 45 days after counsel for the Company initially makes such good faith determination (such counsel shall make such determination promptly and shall give written notice of a Demand Registration, postponed as permitted by Section 2.1(ii), such determination to the foregoing period shall be extended by the aggregate number Holder of Registrable Securities requesting registration within 5 days of making such suspension or postponement.determination);
2.4. The Company (iii) EDS' transferees, collectively, shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with have the right to request one Shelf Registration. For purposes exercise registration rights pursuant to this Section 2 an aggregate of five (5) times (it being acknowledged that EDS' registration rights pursuant to this Section 2 are independent of any rights it transfers to transferees); and
(iv) subsequent to the preceding sentenceSecondary EDS Ownership Reduction, EDS shall have the right to exercise its registration rights pursuant to this Section 2 an aggregate of three (3) times (it being acknowledged that prior to the Secondary EDS Ownership Reduction, there shall be no limit to the number of occasions on which EDS or any of its affiliates may exercise such rights).
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder of Registrable Securities pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not exercised for purposes of subsection 2(a)), (i) unless a registration statement with respect thereto if it has not become effective, (ii) if if, after such registration statement it has become effective, such registration 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 Commission SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, the Registrable Securities requested to be registered cannot attributable to be completely distributed in accordance with the Selling Holders and such interference is not thereafter eliminated, 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, if any, agreement entered into in connection with such registration are not satisfied or waived, waived other than by reason of a failure on some act or omission by such Holder of Registrable Securities.
(c) In the part of the Selling Holders. If the Company shall have complied with its obligations under this Agreement, a right to demand a event that any registration pursuant to this Section 2 (other than subsection (2)(a)(iii)) shall involve, in whole or in part, an underwritten offering, EDS shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead underwriter 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 EDS pursuant to Section 2(a); except, that the Company shall not have the right to cause the registration of such additional securities if EDS is advised in writing setting forth specific reasons (with a copy to the Company) by a nationally recognized independent investment banking firm selected by EDS that, in such firm's opinion, registration of such additional securities would materially and adversely affect the offering and sale of the Registrable Securities then contemplated by EDS. EDS may require that any such additional securities be deemed included in the offering proposed by EDS on the same terms and conditions as the Registrable Securities that are included therein.
(e) After the Primary EDS Ownership Reduction, in the event that, at any time after any Rule 415 Offering is declared effective, the general counsel of the Company determines in good faith that the sale of Registrable Securities in such Rule 415 Offering would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or that the Company is unable to have been satisfied (i) if a Demand Registrationcomply with SEC requirements, Holders selling Registrable Securities in such Rule 415 Offering shall, upon written notice of such good faith determination, suspend sales of such Registrable Securities for a period beginning on the date of receipt of such notice and expiring on the earlier of (xi) the date as of upon which all of the Registrable Securities included therein shall have been disposed of pursuant such material information is disclosed to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order public or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required ceases to be filed by material or the Company is able to comply with the Commission in a timely manner so as to remain eligible or become eligibleSEC requirements, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i(ii) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business 45 days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration general counsel of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in initially makes such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2good faith determination.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Unigraphics Solutions Inc)
Demand Registration. (a) At any time after the date that is 180 days after the date hereof (or such earlier date (i) If one as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or more Holders that own an aggregate of 51% or more (ii) as is permitted by waiver of the Registrable Securities then outstanding IPO Underwriting Agreement), any Person that is a Stockholder (the a “Demanding HoldersRequesting Stockholder”) on the date a Demand is made shall at any time be entitled to make a written request to the Company, of the Company shall cause there to be filed with the Commission (a “Demand”) for registration statement meeting the requirements of under the Securities Act of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”)) and thereupon the Company will, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number the terms of such Demanding Holder’s Registered Sharesthis Agreement, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 use its good faith commercially reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) efforts to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallof:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under that the Demand Registration statement shall have Company has been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant so requested to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended register by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court Requesting Stockholders 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified stated in such Demand, which may be an Underwritten Offering;
(ii) all other Registrable Securities that the request Company has been requested to register by the Registering Stockholder pursuant to Section 2.1(i4.1(b);
(iii) or all shares of Common Stock that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 2.24.1, respectively. The Company agrees but subject to file Section 4.1(f); and
(iv) all reports required to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Persons that on the date a Demand is delivered to the Company is a Stockholder. Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five days after such notice by the Company has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may beCommission, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7(e) The Company shall not be obligated to effect any Demand Registration (A) within three months of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.3(e). Whenever In addition, the Company shall effect be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration pursuant statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to this such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 2 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: a Demand Registration, any managing underwriter (i) or, if such Selling Holders have requested Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the inclusion therein of more than one class of Registrable SecuritiesCompany, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class all of the securities, including securities of the Company that are not Registrable Securities Securities, sought to be registered in connection with such Demand Registration would adversely affect such offering, the Demanding Holders holding at least a majority marketability of the Registrable Securities proposed sought to be sold therein pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by themsuch underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, shall decide which class up to the number of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether Demand Registration by Selling Holders or others) exceeds the amount which Stockholders, which, in the opinion of the underwriter can be sold in without adversely affecting the marketability of the offering, pro rata among such offering within a price range acceptable to Stockholders requesting such Demand Registration on the Majority Selling Holdersbasis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities shall the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such offering and registration statement, pro rata on the related registration, to the extent basis of the amount which can number of such other securities requested to be sold within included or such price rangeother method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by FIG LLC, for so long as a majority of the Common Stock of the Company is owned by the Initial Stockholder, its Permitted Transferees and any Fortress Affiliate Stockholder, and on thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees) a pro rata basis among number of Registrable Securities included in such Demand Registration constituting a plurality of all Selling HoldersRegistrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Stockholders Agreement (Nationstar Mortgage Holdings Inc.)
Demand Registration. (ia) If one At any time on or more Holders that own an aggregate of 51% or more after the second anniversary of the Registrable Securities then outstanding (IPO Closing Date, if the “Demanding Holders”) Holder shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “"Demand Registration”"), and each Demanding the Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares's Registrable Securities, as the Demanding Holder shall report request in writing; provided, -------- however, that the fair market value of the Holder's Registrable Securities to be ------- included in such registration shall not be less than $50.0 million as of the date of such written request (unless such Registrable Securities represent all of the Holder's Registrable Securities); and provided further, however, that no ---------------- ------- request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the CompanyCompany (or if there is no such officer, the President), 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 pursuant to this Section 2.1(i2.1(a).
(iib) The Company shall be entitled to postpone for up to one hundred twenty sixty (12060) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.12.1 (or delay seeking effectiveness of a Registration Statement which has been filed), if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any)judgment, that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature and seriously detrimental disclosure of, any material financing, acquisition or reorganization or other material matter involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders Holder notice of such determination; provided, however, that the Company -------- ------- shall not have postponed pursuant to this Section 2.1(ii2.1(b) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).Demand
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(ia) File the registration statement with the Commission as promptly as practicable, and and, subject to Section 2.1(b), shall use the Company’s best 's reasonable efforts to have the registration statement declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.; and
(iib) Use the Company’s best 's reasonable efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy ninety (27090) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in or filing of the case of a Demand Registration, Registration Statement or seeking effectiveness thereof is postponed as permitted by Section 2.1(ii2.1(b), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. 2.3 A registration pursuant to this Section 2 shall be on Form S-3 such appropriate registration form of the Commission as shall (a) be selected by the Company and be reasonably acceptable to the Holder and (b) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment2.1(a). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 2.4 If any registration pursuant to this Section 2 involves an underwritten offering (whether on a “firm”, “"firm commitment," "best efforts” " or “"all reasonable efforts” " basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Holder 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; provided, however, that each Person so -------- ------- selected shall be reasonably acceptable to the Company.
2.7. Whenever 2.5 No securities other than Registrable Securities (including without limitation shares to be sold for the Company Company's account) shall effect a be included in any registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested without the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority prior written consent of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Timberland Growth Corp)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of Subject to the Registrable Securities then outstanding (the “Demanding Holders”) shall provisions hereof, at any time make a written request to on or after the Companydate that is 180 days after the Closing Date, the Holders of a majority of Registrable Securities shall have the right to require the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(ian Underwritten Offering (as defined below).
, and (iiiii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise containing all information about such Holder required to be prepared included in such Registration Statement in accordance with applicable Law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and filed pursuant (y) use reasonable best efforts to this Section 2.1effect such registration (including, if without limitation, appropriate qualification under applicable blue sky or other state securities Laws and appropriate compliance with applicable regulations issued under the Board determines, in its good faith reasonable judgment (with the concurrence Securities Act and any other governmental requirements or regulations) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationhas been so requested to register; provided, however, that (i) the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration under this Section 3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or a Shelf Registrationdelayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 3.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company shall:
(ito and for the benefit of the underwriter(s) File shall also be made to and for the registration statement with benefit of the Commission as promptly as practicableHolders proposing to distribute their securities through the Underwritten Offering, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the Company’s best efforts liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to keep losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the relevant registration statement Continuously Effective Company by or on behalf of such Holder expressly for inclusion therein and (xb) if a Demand Registrationshall not in any Table of Contents event, for up absent fraud or intentional misrepresentation, exceed an amount equal to two hundred seventy the net proceeds to such Holder (270after deduction of all underwriters’ discounts and commissions) days or until such earlier date as from the disposition of which all the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days terms of such suspension or postponement.
2.4underwriting agreement. The Company shall not be obligated to effect no or participate (a) more than three Demand Registrations two (2) Underwritten Offerings in any twelve (12) month period, and such (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of Shelf Registrations as may securities proposed to be necessary included in such registration exceeds the Underwriters’ maximum number, then (i) the Company shall so advise all Holders of Registrable Securities to provide each be included in such Underwritten Offering and every Substantial Holder with (ii) the right Company will be obligated and required to request one Shelf Registration. For purposes include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ maximum number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the preceding sentence, number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration shall will not be deemed to have been effected (i) as a Demand Registration unless a the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or administrative agency, or if any court for any reason not attributable prevents or otherwise limits the sale of the Registrable Securities pursuant to the Selling Holders registration, 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 each case less 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and or (ii) if if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 3.2(a). If (i) a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 3.2 is deemed not to have been effected as a Demand Registration or (ii) the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request registration requested pursuant to this Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to 3.2 does not remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than continuously effective until forty-five (545) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration commencement of the offer and sale distribution by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to Holders of the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 3.2 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 3.2(d), shall decide which class each Holder of Registrable Securities shall be included therein in permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such offering and the related registrationDemand Registration, and the other class provided that such registration nonetheless shall be excluded; and count as a Demand Registration for purposes of clause (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersproviso to Section 3.2(a).
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more of Commencing on the Registrable Securities then outstanding (applicable Initial Registration Date, the “Demanding Holders”) shall at any time DLJ Entities may make a written request to (any such requesting Person, a "SELLING INVESTOR") that the Company, Issuer effect the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of under the Securities Act (of all or a “Demand Registration”)portion of such Selling Investor's applicable Registerable Securities, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, specifying the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) thereof. The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall Issuer will promptly give written notice of such proposed requested registration to all Holders. Any such Holder may, within twenty (20a "DEMAND REGISTRATION") at least thirty (30) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in prior to the registration.
2.2. On or after the anticipated filing date of this Agreement each Substantial Holder that shall make a written request the registration statement relating to such Demand Registration to the Company (other Investors and thereupon will use its best efforts to effect, as soon as practicable, the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallof:
(i) File the registration statement with Registerable Securities which the Commission as promptly as practicableIssuer has been so requested to register by the Selling Investor, and shall use then held by the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.Selling Investor;
(ii) Use subject to Section 5.2, all other Securities of the Company’s best efforts same type as the Registerable Securities sought to keep be registered by the relevant registration statement Continuously Effective Selling Investor which any other Investor entitled to request the Issuer to effect an Incidental Registration (xas such term is defined in Section 5.2) if a Demand Registrationpursuant to Section 5.2 (all such Investors, for up together with the Selling Investors, the "HOLDERS") has requested the Issuer to two hundred seventy register by written request received by the Issuer within fifteen (27015) days or until after the receipt by such earlier date other Investors of such written notice given by the Issuer; and
(iii) shares of Common Stock desired to be registered by the Issuer as approved pursuant to Section 2.4 hereof, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of which all the Registrable Registerable Securities under so to be registered; provided that, subject to Section 5.1(c) hereof, the Demand Registration statement Issuer shall have been disposed of in the manner described in the Registration Statementnot be obligated to effect, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or5.1(a), (A) more than one Demand Registration during any six-month period, (B) more than four Demand Registrations in connection with the registration of the Senior Preferred Stock (which registration may also relate to Warrants to be offered in connection with such Senior Preferred Stock), (C) more than four Demand Registrations in connection with the registration of the Junior Preferred Stock (which registration may also relate to Warrants to be offered in connection with such Junior Preferred Stock), (D) more than four Demand Registrations in connection with the registration of the Warrants (which registration may also relate to the Senior Preferred Stock and/or the Junior Preferred Stock to be offered in connection with such Warrants), and (E) more than two Demand Registrations in connection with the registration of any other Registerable Securities. If Warrants are sold in connection with a registered or Rule 144A sale of the Senior Preferred Stock or the Junior Preferred Stock, the Issuer shall (not earlier than the time the Issuer registers the Senior Preferred Stock or the Junior Preferred Stock (or exchange securities in the case of a Demand RegistrationRule 144A offering)) file a shelf registration statement relating to all the Common Stock underlying such Warrants; provided that any holder of Warrants seeking to offer, postponed as permitted by Section 2.1(ii)purchase or sell any of the Common Stock underlying such Warrants will first notify the Issuer and allow the Issuer to prepare an appropriate prospectus supplement to be used in such transaction, and that the foregoing period Issuer's obligation to prepare such a prospectus supplement (and accordingly the ability of the holder to effect such offer, purchase or sale) will be subject to customary deferral provisions; and provided further that in no event shall the Issuer be extended by entitled to postpone or suspend the aggregate number of days preparation and filing of such suspension or postponement.
2.4prospectus supplement for a period exceeding ninety (90) days. The Company Issuer shall not be obligated to effect no more a Demand Registration with respect to shares of Common Stock unless the Common Stock requested to be included in such Demand Registration has, in the reasonable judgment of the Board of Directors exercised in good faith, a fair market value of at least (1) $25,000,000 if such Demand Registration would constitute an Initial Public Offering; provided that if the estimated proceeds from the sale of all the Common Stock to be sold by the Selling Investor is less than three Demand Registrations such amount and such the DLJ Entities and Orkla have requested the Issuer to register all of the Registerable Securities owned by them consisting of Warrants and/or Warrant Shares and/or Common Stock, then the Selling Investor may require the Issuer to issue, or an Other Investor to sell, a sufficient number of Shelf Registrations as may be necessary to provide each and every Substantial Holder shares of Common Stock in connection with the right Initial Public Offering to request one Shelf Registrationresult in aggregate proceeds of at least $25,000,000 or (2) in all other cases, $15,000,000. For purposes Promptly after the expiration of the preceding sentence15-day period referred to in Section 5.1(a)(ii) hereof, the Issuer will notify all the Holders to be included in the Demand Registration of the other Holders and the number of shares of Registerable Securities requested to be included therein. The Selling Investors requesting a registration under this Section 5.1(a)(ii) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Issuer revoking such request, in which case such request, so revoked, shall be treated as a Demand Registration unless the Selling Investors who requested such registration pay the Registration Expenses or the Selling Investors requesting registration shall have on three prior occasions revoked registration requests.
(b) The Issuer will, subject to Section 5.1(a), pay all Registration Expenses in connection with each Demand Registration.
(c) A registration requested pursuant to this Section 5.1 shall not be deemed to have been effected effected, subject to Section 5.1(a), unless the registration statement relating thereto (i) unless a registration statement with respect thereto has become effective, effective under the Securities Act and (ii) has remained effective for a period of at least 270 days (or such shorter period in which all Registerable Securities of the Holders included in such registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section 5.1 becomes effective and (i) such registration statement has become effective, such registration 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 Commission SEC or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition less than 85% of the Registrable Registerable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be registration statement has been sold in thereunder, such offering within a price range acceptable to the Majority Selling Holders, securities registration statement shall be included in such offering and at the related registration, to the extent sole expense of the amount which can Issuer and shall not be sold within such price range, and on considered a pro rata basis among all Selling HoldersDemand Registration.
Appears in 1 contract
Demand Registration. On not more than two occasions prior to ------------------- December 31, 2001, if Du Pont (i) If one requests in writing (a "Registration Request") that CEI register the sale or more Holders that own an aggregate other distribution under the Securities Act of 51% or more 1933, as amended (the "Securities Act") of any of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written which request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities intended to be registeredoffered and sold), the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled expresses Du Pont's present intent to postpone offer such Registrable Securities for up to one hundred twenty distribution, (120iii) days describes 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 (with the concurrence nature or method of the managing underwriterproposed offer and sale thereof, if any), that and (iv) undertakes to provide all such registration information and materials relating to Du Pont and to take all such action as may be required of Du Pont in order to permit CEI to comply with all applicable requirements of the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving and Exchange Commission (the Company or any "Commission") and to obtain acceleration 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the effective date of the relevant registration statement therefor, CEI shall use all reasonable efforts to cause the offering of the Registrable Securities so specified in such request pursuant to Section 2.1(i).
(iii) Whenever be registered as soon as reasonably practicable so as to permit the Company shall have received a demand pursuant to Section 2.1(i) to effect sale or other distribution by Du Pont of the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included Securities specified in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that Registration Request, and shall make a written request to the Company (the “Initiating Substantial Holder”)in connection therewith prepare and file on an appropriate form, as CEI shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in reasonably determine, a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 statement under the Securities Act (a “Shelf Registration”)to effect such registration. Any request made Notwithstanding any provision to the contrary contained herein, CEI shall not be required to file any registration statement pursuant to this Section 2.2 shall be addressed to section 1.1
(a) in the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shallfollowing circumstances:
(i) File if, in the reasonable judgment of Rheinbraun or CEI, a registration statement with at the Commission as promptly as practicabletime and on the terms requested would materially adversely affect any financing by CEI that had been contemplated by Rheinbraun or CEI prior to the notice by Du Pont requesting registration, and CEI shall use the Company’s not be required to commence using its best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 section until the earliest of (1) 90 days after the completion of such financing, (2) the termination of any "black out" period required by the underwriters, initial purchasers or placement agents, if any, in connection with an underwritten offering by one such financing or more Selling Holders (3) promptly after abandonment of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and financing;
(ii) if, while a Registration Request is pending pursuant to this section, Rheinbraun or CEI determines in good faith, based on the advice of counsel, that proceeding with the registration would require the disclosure of material information that Rheinbraun or CEI has a bona fide business purpose for preserving as confidential, or CEI is unable to comply with Commission requirements, CEI shall not be required to effect such pending registration statement until the earlier of (1) the date upon which such material information is disclosed to the public or ceases to be material or (2) 120 days after the date CEI makes such determination; and
(iii) if Rheinbraun and CEI shall not have received undertakings reasonably satisfactory to them from any underwriter or underwriters to indemnify and hold them harmless, each of their directors and officers, and every other controlling person of them, from and against any and all loss, damage, liability, cost or expense to which they, any director or officer of them, or every other controlling person of them may become subject under the Underwriters’ Representative Securities Act or Agent advises each otherwise, insofar as such Selling Holder losses, damages, liabilities, costs or expenses (A) are caused by any untrue or alleged untrue statement of any material fact contained in writing thatthe registration statement or prospectus included therein, as amended or supplemented, or (B) arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in its opinionlight of the circumstances in which they were made, the amount of securities requested to be included not misleading, in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable each case to the Majority Selling Holdersextent, securities that such untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with written information furnished by such underwriter or underwriters.
(iv) The right of Du Pont to exercise registration rights pursuant to section 1.1(a) shall be included in such offering and the related registration, subject to the extent condition that the first Registration Request of the amount which can Du Pont shall be sold within such price range, and on a pro rata basis among all Selling Holdersfor not less than 20,000 Class A Shares (or equivalent).
Appears in 1 contract
Demand Registration. (ia) If one Subject to the provisions hereof, at any time on or more Holders that own an aggregate of 51% or more after the Initial Closing Date, the Purchaser and any assignee of the Registrable Securities then outstanding Purchaser pursuant to Section 10.6 of this Agreement (the each a “Demanding HoldersHolder”) shall at any time make have the right to require the Company to file a written request Registration Statement registering for sale all or part of the Conversion Shares held by or issuable to the Companythem (including Conversion Shares that may be issued in respect of PIK Interest) (collectively, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of “Registrable Securities”) under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no by delivering a written request may be made pursuant to this Section 2.1 if within six (6) months prior therefor to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify Company (i) specifying the number of Registrable Securities to be registeredincluded in such registration by such Holder or Holders, (ii) specifying whether the intended methods method of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
an Underwritten Offering, and (iiiii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise containing all information about such Holder required to be prepared included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify any Holders from whom the request for registration has not been received and filed pursuant (y) use commercially reasonable efforts to this Section 2.1effect such registration (including, if without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Board determines, in its good faith reasonable judgment (with the concurrence Securities Act and any other governmental requirements or regulations) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving that the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determinationhas been so requested to register; provided, however, that (i) the Company Holders shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registrationunder this Section 8.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts Holders will not be entitled to keep require the relevant registration statement Continuously Effective Company to effect more than three (x3) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of Registrations in the manner described in the Registration Statementaggregate under this Agreement, and (yiii) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall will not be obligated to effect no more than three one (1) Demand Registrations Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an Underwritten Offering. In such case, (i) the Holders of a majority of the Registrable Securities to be sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten Offering and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) give written advice to the Company of an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum Number prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities shall be allocated pro rata among the Holders thereof on the basis of the number of Shelf Registrations as may Registrable Securities requested to be necessary to provide included therein by each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, such Holder.
(d) A registration shall will not be deemed to have been effected (i) as a Demand Registration unless a the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration statement by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto thereto; provided, however, that if, after it has become effective, (iii) if after such registration statement has become effective, such registration Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the Commission SEC or any other governmental agency or administrative agency, or if any court for any reason not attributable prevents or otherwise limits the sale of the Registrable Securities pursuant to the Selling Holders registration, 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 each case less 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and or (ii) if if, in the case of an Underwritten Offering, the Company fails to provide full cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 8.1(a). If (i) a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration requested pursuant to this Section 2 shall be on Form S-3 and permit 8.1 is deemed not to have been effected as a Demand Registration or (ii) the disposition registration requested pursuant to this Section 8.1 does not remain continuously effective until the completion of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed distribution by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use Holders of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formregistration, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, then the Company shall use its commercially reasonable efforts continue to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority 8.1 of the Registrable Securities proposed to be sold therein by themincluded in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 8.1(d), shall decide which class each Holder of Registrable Securities shall be included therein in permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such offering and the related registrationDemand Registration, and the other class provided that such registration nonetheless shall be excluded; and count as a Demand Registration for purposes of clause (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersproviso to Section 8.1(a).
Appears in 1 contract
Demand Registration. (ia) If At any time commencing one year after the Effective Date of the Public Offering, and expiring four years thereafter, the Holders of Registrable Securities representing more than 50% of such securities at that time outstanding shall have the right (which is in addition to the registration rights under Section 7.2), exercisable by written notice to the Company, to have the Company prepare and file with the Commission at the sole expense of the Company, on one occasion, a registration statement and/or such other documents, including a prospectus, and/or any other appropriate disclosure document as may be reasonably necessary in the opinion of both counsel for the Company and counsel for the Representative and Holders, in order to comply with the provisions of the Act, so as to permit a public offering and sale of their respective Registrable Securities for nine consecutive months (or more such longer period of time as permitted by the Act) by such Holders that own an aggregate and any other Holders of 51% or more any of the Registrable Securities then outstanding who notify the Company within ten days after being given notice from the Company of such request (a "Demand Registration"). A Demand Registration shall not be counted as a Demand Registration hereunder until such Demand Registration has been declared effective by the “Demanding Holders”SEC and maintained continuously effective for a period of at least nine months , subject to reasonable "black-out" periods in which event such nine months shall be extended by a number of days equal to the duration and the "black-out" periods, or such shorter period when all Registrable Securities included therein have been sold in accordance with such Demand Registration, provided that a Demand Registration shall be counted as a Demand Registration hereunder if the Company ceases its efforts in respect of such Demand Registration at the request of the majority Holders making the demand for a reason other than a material and adverse change in the business, assets, prospects or condition (financial or otherwise) shall of the Company and its subsidiaries taken as a whole.
(b) The Company covenants and agrees to give written notice of any registration request under this Section 7.3 by the majority of the Holders to all other registered Holders of any of the Registrable Securities within ten days from the date of the receipt of any such registration request.
(c) In addition to the registration rights under Section 7.2 and subsection (a) of this Section 7.3, at any time make a commencing one year after the Effective Date of the Public Offering, and expiring four years thereafter, the Holders of any Registrable Securities representing more than 50% of such securities shall have the right, exercisable by written request to the Company, to have the Company shall cause there to be filed prepare and file, on one occasion, with the Commission a registration statement meeting the requirements of the Securities Act or any other appropriate disclosure document so as to permit a public offering and sale for nine consecutive months (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number longer period of such Demanding Holder’s Registered Shares, time as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective permitted by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number Act) by any such Holder of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 determinationSecurities; provided, however, that the Company provisions of Section 7.4(b) shall not have postponed pursuant apply to this Section 2.1(ii) any such registration request and registration and all costs incident thereto shall be at the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date expense of the relevant request pursuant to Section 2.1(i)Holder or Holders participating in the offering pro-rata.
(iiid) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to by the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request Holders made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company 7.3 shall:
(i) File Specify the registration statement with number of Registrable Securities which the Commission as promptly as practicable, Holders intend to offer and shall use sell and the Company’s best efforts minimum price at which the Holders intend to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence offer and complete other actions that are reasonably necessary to effect a registered public offering.sell such securities;
(ii) Use State the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes intention of the preceding sentence, registration shall not be deemed Holders to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after offer such registration statement has become effective, such registration 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 Commission or other governmental agency or court securities for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or sale;
(iii) if Describe the conditions to closing specified in the underwriting agreement, if any, entered into in connection with intended method of distribution of such registration are not satisfied or waived, other than by reason of a failure securities; and
(iv) Contain an undertaking on the part of the Selling Holders. If Holders to provide all such information and materials concerning the Holders and take all such action as may be reasonably required to permit the Company shall have complied to comply with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all applicable requirements of the Registrable Securities included therein shall have been disposed Commission and to obtain acceleration 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedthe registration statement.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit (e) In the disposition event the Company receives from the Holders of the any Registrable Securities in accordance with the intended method or methods representing more than 50% of disposition specified in the such securities at that time outstanding, a request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by that the Company with the Commission in effect a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on if Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 available for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority Company shall, as soon as practicable, effect such registration as would permit or facilitate the sale and distribution of the Registrable Securities proposed as are specified in the request. All expenses incurred in connection with a registration requested pursuant to be sold therein by them, shall decide which class of Registrable Securities this Subsection (e) shall be included therein in such offering borne by the Company. Registrations effected pursuant to this Subsection (e) shall not be counted as registrations pursuant to Sections 7.3 (a) and the related registration, and the other class shall be excluded; and 7.3 (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersc).
Appears in 1 contract
Sources: Representative's Warrant Agreement (Commerce Casualty Group Inc)
Demand Registration. (i1) If one or more Holders that own A Holder of Registrable Securities (the “Initiating Holder”) may, at any time and from time to time, provided that: (a) EV Metals has subscribed for at least an aggregate of 51US$4,000,000 of Shares in connection with the Offering; and (b) at such time, such Holder, collectively with its Affiliates, beneficially owns or exercises control or direction over 5% or more of all outstanding Shares (and provided such beneficial ownership or control was obtained without contravening applicable Securities Laws), require the Registrable Securities then outstanding Company to file one or more Prospectuses and take such other steps as may be reasonably necessary to facilitate a secondary offering in Canada, except for the province of Quebec, of all or any portion of the Shares held by such Initiating Holder (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled by giving written notice of such Demand Registration to have included therein (the Company. The Company shall, subject to Section 2.7) applicable Securities Laws, use its commercially reasonable efforts to file one or more Prospectuses under applicable Securities Laws in order to permit the Offering of all or such number any portion of such Demanding the Initiating Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities requested to be registered, included in such Demand Registration. The Parties shall cooperate in a timely manner in connection with such secondary offering and the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i)procedures in Schedule “A” shall apply.
(ii2) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 be obliged to this Section 2.1(iieffect:
a) more than two Demand Registrations by any Holder in any 12-month period;
b) a Demand Registration in the event the Company reasonably determines in good faith that (i) either (A) the effect of the filing of any other Demand Registration statement otherwise required a Prospectus would impede the ability of the Company to consummate a significant transaction (including, without limitation, a financing, an acquisition, a restructuring or a merger), (B) there exists at the time material non-public information relating to the Company the disclosure of which would be prepared detrimental to the Company or the qualification or sale of the Registrable Securities would require premature disclosure of material non-public information, or information which might reasonably be regarded as material non-public information that the Company has a bona fide business purpose for preserving as confidential or (C) if applicable, require the Company to prepare and filed pursuant file new technical reports under NI 43 101 - Standards of Disclosure for Mineral Projects of the Canadian Securities Administrators; and (ii) it is therefore in the best interests of the Company to defer the filing of a Prospectus at such time; in which case the Company’s obligations under this Section 2.1 during the 24 month 3.1 shall: (1) in respect of (A) and (B) of this Section be deferred for a period ended on of not more than 90 days from the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, the request of an Initiating Holder or (2) in writing that all respect of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date (C) of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall Section be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or deferred until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand Registration, upon the earlier of (xi) 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligiblefiles new technical reports, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, which the Company shall use its commercially reasonable efforts to meet complete as soon as practicable or (ii) the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall date the Company be obligated files its next annual information form pursuant to file NI 51-102 – Continuous Disclosure Obligations, provided in each case, however, that (i) the Company shall give written notice to the Holder (x) of its determination to postpone filing of the Prospectus and, subject to compliance by the Company with Securities Laws, of the facts giving rise to the reason for the postponement and (y) of the time at which it determines the reason for postponement to no longer exist and (ii) the Company shall not qualify any securities offered by the Company for its own account during such period;
c) a Demand Registration State in respect of a number of Shares less than 1,000,000;
d) a Demand Registration before the 90th day following the date on which a receipt was issued to the Company with respect to any form other than Form S-3 to fulfill ist obligations under Section 2.2Prospectus filed by the Company; or
e) a Demand Registration during a period of management-imposed blackout.
2.6. If any registration (3) Any request by the Initiating Holder pursuant to Section 2 involves 3.1(1) hereof shall (a) specify the number of Shares which such Initiating Holder intends to offer and sell, (b) express the intention of such Initiating Holder to offer or cause the offering of such Shares, (c) describe the nature or methods of the proposed offer and sale thereof and the provinces and territories of Canada in which such offer shall be made, (d) contain the undertaking of such Initiating Holder to provide all such information regarding its holdings and the proposed manner of distribution thereof as may be required in order to permit the Company to comply with all applicable Securities Laws, and (e) specify whether such Offering and sale shall be made by an underwritten offering Underwritten Offering.
(whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or 4) In the case of an agented offeringUnderwritten Offering initiated pursuant to this Section 3.1, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, Holder shall have the right to select the managing underwriter or underwriters and manager or managers to administer of such underwritten offering or the placement agent or agents for such agented offering; Registrable Securities, provided, however, that each Person so selected such selection shall also be reasonably satisfactory to the Company. The Company shall be entitled to retain counsel of its choice to assist it in fulfilling its obligations under this Section 3.1.
(5) The Company shall have the right to include in any Demand Registration, Shares or other securities which are not Registrable Securities representing up to 15% of the number of Registrable Securities subject to such Demand Registration, provided that, if the managing underwriter or underwriters impose a limitation on the number of Shares or on the number or kind of other securities which may be included in any such Offering because, in its or their reasonable judgment, such Registrable Securities may not be sold in an orderly manner within a price range reasonably acceptable to the Company.
2.7. Whenever Initiating Holder or marketing factors require the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority limitation of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount number of securities requested to which may be included in such offering (whether Public Offering, such Offering shall be comprised of Shares selected according to the following priority:
a) first, the Registrable Securities offered by Selling Holders or othersthe Initiating Holder;
b) exceeds the amount second, if there are additional securities which can may be sold in such offering underwritten within a price range reasonably acceptable to the Majority Selling HoldersInitiating Holder, considering marketing factors, without leading to undue repercussions on the Public Offering of the securities shall offered after taking into account the inclusion of all the securities required under paragraph (a) above, the securities the Company required to be included included.
(6) In the case of an Underwritten Offering, an Initiating Holder may participate in such offering the negotiations of the terms of any underwriting agreement. An Initiating H▇▇▇▇▇’s participation in, and the related registrationCompany’s completion of, the Underwritten Offering is conditional upon the Initiating Holder and the Company agreeing that the terms of any underwriting agreement are satisfactory to the extent of the amount which can be sold within such price rangethem, and on a pro rata basis among all Selling Holdersacting reasonably.
Appears in 1 contract
Sources: Investor Rights Agreement (International Battery Metals Ltd.)
Demand Registration. In the event that following the period the Holder is prohibited from selling the Registrable Securities by the provisions of the underwriting agreement relating to the Initial Public Offering, any Holder or Holders (i) If one desire to sell shares of Registrable Securities owned by such Holder or more Holders and (ii) an exemption from registration under the Securities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), is not available to enable the Holder or Holders to dispose of the number of shares of Registrable Securities it desires to sell at the time and in the manner it desires to do so, then upon the written request of any Holder or Holders requesting that own an aggregate the Company effect the registration under the Securities Act of 51% all or more part of such Holder's or Holders' Registrable Securities and specifying the intended method of disposition thereof, but subject to the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and the Company shall file with the Commission as promptly as practicable after sending such notice, and use its best efforts to cause to become effective, a registration statement under the Securities Act registering the offering and sale of:
(i) the Registrable Securities which the Company has been so requested to register by such Holder or Holders; and
(ii) all other Registrable Securities which the Company has been requested to register by any other Holder thereof by written request given to the Company within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended method thereof as aforesaid) of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities so to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State registration statement relating to any registration request under this
Section 2(a) (A) unless the aggregate requests by the Holder or Holders for such registration cover not less than 5.0% of the outstanding Common Stock, (B) with respect to more than an aggregate of 3 registrations (which shall be increased to an unlimited number of registrations if such additional registrations are effected on any form other than Form S-3 or any successor similar short-form registration statement) under this Section 2(a), (C) within a period of 180 days after the effective date of any other registration statement relating to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to request under this Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise2(a), or an agented offering(D) if with respect thereto, the Majority Selling Holdersmanaging underwriter, the Commission, the Securities Act or the rules and regulations thereunder, or the Initiating Substantial Holderform on which the registration statement is to be filed, as would require the case may be, shall have conduct of an audit other than 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever regular audit conducted by the Company shall effect a at the end of its fiscal year, in which case the filing may be delayed until the completion of such regular audit (unless the Holders requesting such registration pursuant agree to this Section 2 pay the expenses of the Company in connection with such an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested audit other than the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersregular audit).
Appears in 1 contract
Demand Registration. (a) Subject to Article III, at any time after the six (6) month anniversary of the Company’s initial Public Offering after the Effective Date, (i) If one or more Holders that own an aggregate any Holder of 51at least 10% or more of the Registrable Securities then outstanding or (ii) the “Demanding Holders”GSAM Investors or their Affiliates, so long as they Beneficially Own at least one-third of the Registrable Securities Beneficially Owned by the GSAM Investors on the Effective Date, may request in writing (specifying that such request is being made pursuant to this Section 2.01(a) shall at any time make a written request to and the Company, intended method or methods of disposition thereof) that the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements of (or corresponding successor document) under the Securities Act Act, of all or part of its or their Registrable Securities (a “Demand Registration”). Thereafter, the Company shall promptly notify all other Holders in writing of the receipt of such request, and each Demanding such Holder shall be entitled in lieu of exercising its rights under Section 2.02 may elect (by written notice sent to the Company within ten (10) Business Days from the date of the aforementioned notice) to have Registrable Securities included therein (subject to Section 2.7) all or in such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made Demand Registration thereof pursuant to this Section 2.1 if within six (6) months prior 2.01(a). Thereupon the Company shall, as expeditiously as is reasonably possible, use its commercially reasonable efforts to effect the date registration under the Securities Act of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number all shares of Registrable Securities which the Company has been so requested to be registeredregister by such Holders for sale, all to the extent required to permit the disposition (in accordance with the intended method or methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(iithereof, as aforesaid) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 determinationso registered; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise be required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 on a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration Form S-1 or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a “long-form” registration pursuant to this Section 2 is suspended or2.01(a) unless the Registrable Securities requested by all Holders to be registered have an anticipated aggregate public offering price (before any underwriting discounts and commissions) of not less than Fifteen Million Dollars ($15,000,000); and further provided, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii)however, the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed required to have been effected effect more than two (i2) unless registrations on Form S-1 or other “long form” registration of any Registrable Securities pursuant to this Section 2.01(a). There shall be no aggregate limit on short-form registrations on Form S-3 or any successor form so long as the anticipated aggregate public offering price (before any underwriting discounts and commissions) of the Registrable Securities to be registered on each such short-form registration is not less than Three Million Dollars ($3,000,000). Except as otherwise provided in Section 2.04, all expenses of such registration shall be borne by the Company.
(b) A registration will not count as a Demand Registration until the applicable registration statement has become effective (unless the requesting Holder withdraws all of its Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the requesting Holder pays all registration expenses in connection with respect thereto such withdrawn registration); provided, however, that if, after it has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution an offering of Registrable Securities thereunder pursuant to a registration is either (i) interfered with by any stop order, injunction or other order or requirement action of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, (other than because of a violation of applicable law by a Holder) or (iiiy) if withdrawn because of any development affecting the conditions to closing specified Company, in the underwriting agreementeither case before being in effect for more than 90 days, if any, entered into in connection with then 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 will be deemed not to have been satisfied (i) if effected and will not count as a Demand Registration, upon the earlier of Registration unless at least ninety percent (x90%) the date as of which all of the Registrable Securities included therein shall thereon have been sold or otherwise disposed of.
(c) If the managing underwriter of pursuant to the Registration Statement, and (y) the date as of which such a Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by advise the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority all of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in the Demand Registration would materially and adversely affect the distribution of a smaller amount of such Registrable Securities, then all selling Holders shall reduce the amount of Registrable Securities each intended to distribute through such offering (whether by Selling Holders or others) exceeds on a pro-rata basis such that the amount which can be sold in such offering within a price range acceptable Registrable Securities to the Majority Selling Holders, securities shall be included in the Demand Registration shall be reduced to such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderssmaller amount.
Appears in 1 contract
Sources: Restructuring Agreement (Ener1 Inc)
Demand Registration. (i) If Any one or more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding Holders (the “Demanding Initiating Holders”) shall at any time make a written request to the Company, the Company shall cause there to be 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 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request the Company to effect one Shelf Registration. For purposes of registration on Form S-3 (the preceding sentence, registration shall not be deemed to have been effected (i“Demand Registration Statement”) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration to all 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 Commission or other governmental agency or court 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 Shares (such request shall be deemed in writing and shall state the number of Shares to have been satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been be 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendmentdisposition). Notwithstanding the foregoing, the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 4:
(a) so long as the Shelf Registration Statement is effective (subject to Sections 5(c) and (d) herein); or
(b) if the Shares requested to be included in such registration have an aggregate fair market value of less than $50,000,000. Subject to the foregoing, the Company will use its commercially reasonable efforts to meet effect promptly the requirements registration of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State Shares on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or extent requested by the Initiating Substantial HolderHolders thereof for purposes of disposition and, as subject to Sections 5(c) and (d) hereof, to keep such Demand Registration Statement effective for a period not in excess of 60 days or until the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Initiating Holders have requested completed the inclusion therein of more than one class of Registrable Securitiesdistribution described in the Demand Registration Statement, whichever first occurs and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing thatDemand Registration Statement is not effective for this period, in its opinion, then it shall not count as a Demand Registration Statement under this Agreement. The Demand Registration Statement will contain a plan of distribution as designated by the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities . The Demand Registration Statement shall be included in such offering and the related registrationalso cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416) such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Shares. If the Initiating Holder (or a majority in interest of the amount Initiating Holders) so elect, the offering of Shares pursuant to such Demand Registration Statement shall be in the form of a firm commitment underwritten offering, in which can case all persons or entities participating in such registration may be sold within required to sell their Shares which are included in such registration to the underwriters at the same price range, and on the same terms of underwriting as is applicable to the Initiating Holder or Holders. If the Demand Registration Statement involves an underwritten offering, the sole or managing underwriters and any additional investment bankers and managers to be used in connection with such registration shall be selected by the Initiating Holder or a pro rata basis among all Selling majority in interest of the Initiating Holders, subject to the approval of the Company, which approval shall not be unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more At any time after the first anniversary of the Registrable Securities then outstanding consummation of the Merger, the Holder(s) of Shares representing a "Majority" (as hereinafter defined), of such securities shall have the “Demanding Holders”) shall at any time make a right (which right is in addition to the Piggyback Registration rights provided for under Section 1 hereof), exercisable by written request notice to the Company, which may be given ten (10) months from the date hereof (a "Demand Registration Request"), to have the Company shall cause there to be filed prepare and file with the Commission a Commission, at the sole expense of the Company (except as hereinafter provided), in respect of up to the aggregate number of Shares held by the Holders having an aggregate value based upon the average bid and ask price for the five (5) trading days proceeding the effective date of the registration statement meeting equal to $2,500,000 (the requirements "Demand Shares"), a Registration Statement so as to permit a public offering and sale of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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, provided however, that the Company is then eligible to register the Demand Shares on Form S-3 (or successor form) and, if the Holder intends to distribute the Demand Shares by means of an underwriting, then the Holder shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever so notify the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three yearsRequest. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period The underwriter shall be extended selected by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations Holder and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company. The Company and other stockholders may, at the Company's sole discretion, have other shares of the Company's common stock included in such Registration Statement, provided that in the event that an underwriter requires a limitation in the total number of shares in the offering for marketing purposes, then only the shares of the Company proposed to be offered by the Company and such other stockholders shall be cutback, and the Holder's Demand Shares shall not be subject to such cut-back. For purposes of this Agreement, the term "Majority" in reference to the Holders shall mean in excess of sixty-five percent (65%) of the then outstanding Shares held by Holders that have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
2.7(b) The Company will use reasonable efforts to file the Registration Statement as expeditiously as reasonably possible, but in no event later than 60 days following receipt of such Demand Registration Request; provided that nothing herein shall require the Company to undergo an audit, other than in the ordinary course of business; and provided further that no Registration Statement shall become effective before the one (1) year anniversary of the consummation of the Merger. Whenever In connection with any underwritten Demand Registration Request and subject to Section 3(c) hereof, the Company will enter into any underwriting agreement reasonably necessary to effect such offering, provided such underwriting agreement (i) is with an underwriter selected by the Holder and reasonably acceptable to the Company and (ii) contains customary underwriting provisions for offerings by selling stockholders.
(c) Notwithstanding any provision of this Section 2 to the contrary, if, at the time a Demand Registration Request is given to the Company under Section 2 hereof, the Company is negotiating a merger, consolidation, acquisition or sale of all or substantially all of its assets or a similar transaction and if in the opinion of counsel to the Company, the Registration Statement would be required to include information concerning such transactions or the parties thereto which is not reasonably available at the time, the Company shall effect promptly inform the holders of the Demand Shares by written notice of such circumstances (a registration "Postponement Notice") and, at the Company's election to be set forth in the Postponement Notice, the filing of the Registration Statement may be postponed for one (and not more than one) period not to exceed 180 days from the date on which the Demand Registration Request is given to the Company under this Section 2 (notwithstanding any provisions herein to the contrary); provided that in the event of such postponement, the Holder may withdraw the Demand Registration Request during the 90 day period following the date on which the Notice of Postponement was given by the Company, and thereafter the Holder will continue to be entitled to a Demand Registration Request pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if until such Selling Holders have requested time as the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersno longer possesses any Shares.
Appears in 1 contract
Demand Registration. Upon written notice (ithe "Request Notification") If one at any time after nine (9) months from the date hereof by any of the Investor(s) (the "Registering Investors") requesting that the Company effect the registration under the Securities Act of all or more Holders that own an aggregate of 51% or more part of the Registrable Securities then outstanding owned beneficially and of record by the Registering Investors, provided that any such request shall cover in the aggregate not less than twenty percent (20 %) of the “Demanding Holders”) Registrable Securities, which notice shall at specify the intended method or methods of disposition of such Registrable Securities and be simultaneously sent to any time make a written request to the CompanyInvestor not included in said Registering Investors, the Company shall cause there be obliged to be filed file with the U.S. Securities and Exchange Commission (the "SEC") a registration statement meeting the requirements within ninety (90) days of the Securities Act (a “Demand Registration”)Request Notification and use its best efforts, and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or receipt of necessary information from the Registering Investors, to cause such number of such Demanding Holder’s Registered Sharesregistration statement to become effective, as that term is used in the Demanding Holder shall report in writing; providedSecurities Act, however, that no request may be made pursuant to this Section 2.1 if within six one hundred and eighty (6180) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary days of the Company's receipt of the Request Notification, and shall specify the number for disposition of such Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required Investor(s) requesting to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have include all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed owned beneficially and of pursuant to the Registration Statement, and record by it in such registration within thirty (y30) the date as days of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition receipt of the Registrable Securities Request Notification (such Investor(s) upon such request, shall also be "Registering Investors"), in accordance with the intended method or methods of disposition specified stated in the request pursuant to Section 2.1(i) or Section 2.2, respectivelyRequest Notification. The Company agrees to file all reports required to be filed by Any Investor which is not included among the Registering Investors in a given demand and who has not notified the Company with the Commission in within thirty (30) days of receipt of a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration copy of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect Request Notification that it wishes to include all or part of the Registrable Securities covered owned beneficially and of record by the Registration Statement on Form S-1 or other form filed pursuant it shall be deemed for all purposes to Section 2(i) (have waived, and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other formbe precluded from exercising, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, rights in the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a applicable registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders4.
Appears in 1 contract
Sources: Registration Rights Agreement (Touchtunes Music Corp)
Demand Registration. (ia) If After receipt of a written request from one or more Holders requesting that own an aggregate of 51% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, the Company shall cause there to be filed with the Commission effect a registration statement meeting the requirements of the Securities Act (a “Demand Registration”)) under the Securities Act covering all or part of the New Registrable Securities which specifies the intended method or methods of disposition thereof, the Company shall promptly notify all Holders in writing of the receipt of such request and each Demanding Holder shall be entitled such Holder, in lieu of exercising its rights under Section 4 hereof, may elect (by written notice sent to the Company within ten (10) Business Days from the date of such Holder’s receipt of the aforementioned notice from the Company) to have included therein (subject to Section 2.7) all or such number part of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report New Registrable Securities included in writing; provided, however, that no request may be made such registration thereof pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company3, and such Holder shall specify in such notice the number of New Registrable Securities that such Holder elects to be registeredinclude in such registration. Thereupon, the intended methods Company shall, as expeditiously as is possible, but in any event no later than thirty (30) days (excluding any days which occur during a permitted Blackout Period under Section 6 below) after receipt of disposition thereof and that the a written request is for a Demand Registration pursuant Registration, file with the SEC and use its reasonable best efforts to this Section 2.1(i).
cause to be declared effective, a registration statement (ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any a “Demand Registration statement otherwise Statement”) relating to all shares of New Registrable Securities that the Company has been so requested to register by such Holders (“Participating Demand Holders”) for sale, to the extent required to be prepared and filed pursuant to this Section 2.1, if permit the Board determines, disposition (in its good faith reasonable judgment (accordance with the concurrence intended method or methods thereof, as aforesaid) of the managing underwriter, if any), that such registration and the Transfer or New Registrable Securities 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 determinationso registered; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) aggregate value of the filing of any other Demand Registration statement otherwise required New Registrable Securities requested to be prepared and filed pursuant to this Section 2.1 during registered (i) be at least $10,000,000, based on the 24 month period ended closing trading price of the Common Stock on the date the demand to file such Demand Registration Statement is made or (ii) be at least 20% of the relevant request pursuant to Section 2.1(i)New Registrable Securities initially issuable upon exercise of the Warrants.
(iiib) Whenever If the majority-in-interest of the Participating Demand Holders in a Demand Registration relating to a public offering requests that the offering be underwritten with a managing underwriter selected in the manner set forth in Section 14 below and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of securities to be included in such offering is greater than the total number of securities which can be sold therein without having a material adverse effect on the distribution of such securities or otherwise having a material adverse effect on the marketability thereof (the “Maximum Number of Securities”), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders and the participating Old Piggy-Back Holders have received a demand pursuant requested to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request registered thereunder only to the Company (extent the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with does not exceed the Commission in accordance with Maximum Number of Securities. If such amount exceeds the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention Maximum Number of the Secretary of the CompanySecurities, and shall specify the number of Registrable Securities to included in such Demand Registration shall be registeredallocated among all the Participating Demand Holders and the participating Old Piggy-Back Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder and participating Old Piggy-Back Holder). If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the intended methods Company may include in such Demand Registration any other securities of disposition thereof the Company and that other securities held by other security holders of the request is for a Shelf Registration Company as the Company may in its discretion determine or be obligated to allow, in an amount, which together with the Registrable Securities included in such Demand Registration, shall not exceed the Maximum Number of Securities.
(c) Holders shall be entitled to an aggregate of two (2) registrations of New Registrable Securities pursuant to this Section 2.2.
2.3. Following receipt of 3 (each, a request “Demand for a Demand Registration or a Shelf Registration, the Company shall:
(i”) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard addition to the need Shelf Registration Statement pursuant to prepare current financial statements, conduct due diligence and complete other actions Section 2; provided that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration requested pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration 3 shall not be deemed to have been effected for purposes of this Section 3(c) unless (i) unless a registration statement with respect thereto it has become effectivebeen declared effective by the SEC, (ii) if after it has remained effective for the period set forth in Section 7(a), (iii) Holders of New Registrable Securities included in such registration statement has become effectivehave not, prior to the filing of the relevant Demand Registration Statement, withdrawn sufficient shares from such registration or such that the related offerremaining Holders requesting registration would not have been able to request registration under the provisions of Section 3, sale or distribution and (iv) the offering of New Registrable Securities thereunder pursuant to such registration is interfered with by not subject to any stop order, injunction or other order or requirement of the Commission SEC (other than any such stop order, injunction, or other governmental agency order or court 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 requirement 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 (i) if a Demand Registration, upon the earlier SEC prompted by act or omission of (x) the date as Holders of which all of the New 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendmentSecurities). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect if, as a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders result of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Old Registrable Securities would adversely affect such offeringheld by participating Old Piggy-Back Holders, the Demanding Participating Demand Holders holding are not able to register and sell at least a majority two-thirds of the New Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in a Demand Registration, then such offering Demand Registration shall not be counted as one of the two Demands for Registration provided for pursuant to this Section 3(c).
(whether by Selling Holders or othersd) exceeds the amount which can be sold in such offering within a price range acceptable Notwithstanding anything to the Majority Selling Holderscontrary contained herein, securities the Company shall not be included required to prepare and file (i) more than two (2) Demand Registration Statements in such offering and any twelve-month period, (ii) any Demand Registration Statement within 180 days following the related registration, date of effectiveness of any other Registration Statement or (iii) any Demand Registration Statement within 90 days following the date of effectiveness of any other registration statement filed pursuant to the extent Old Registration Agreement or with respect to the sale of Common Stock by the amount which can Company (or such longer period of time as may be sold within specified in an underwriting agreement relating to such price range, and on a pro rata basis among all Selling Holdersregistration statement).
Appears in 1 contract
Sources: Registration Rights Agreement (Pac-West Telecomm Inc)
Demand Registration. (ia) If one or more Holders that own an aggregate of 51% or more At any time following the six-month anniversary of the Registrable Securities then outstanding (date of this Agreement, the “Demanding Holders”) shall at any time Holder may make a written request to the Company, Company requesting that the Company shall cause there to be filed with the Commission a registration statement meeting the requirements of register under the Securities Act of 1933, as amended (a “Demand Registration”the "Act"), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number any portion of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective Shares held by the Commission. Any request made pursuant to this Section 2.1 Holder (but in no event shall the written demand be addressed to for less than 150,000 Shares) for sale in the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, manner specified in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 determinationnotice; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise be required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or1 if counsel for the Company shall deliver an opinion, in form and substance reasonably satisfactory to the case Holder, to the effect that all of a Demand Registrationthe Shares sought to be sold by the Holder are salable pursuant to Rule 144 under the Act. 2
(b) The Company shall use its reasonable commercial efforts to register the Shares under the Act by taking all actions necessary, postponed as permitted by including, without limitation, those actions set forth in Section 2.1(ii)3 hereof, to permit the public sale of the Shares in accordance with the method of disposition specified in the notice described in paragraph (a) above, the foregoing period number of Shares specified in such notice. If such method of disposition shall be extended by an underwritten public offering, the aggregate number of days Holder may designate the managing underwriter of such suspension offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or postponement.
2.4delayed. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial register the Shares held by the Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand Registration1 on three occasions only, 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected such obligation shall be reasonably acceptable deemed satisfied only when a registration statement covering all Shares specified in the notice received as aforesaid, for sale in accordance with the method of disposition specified by the Holder shall have become effective.
(c) The Company shall be entitled to include in any registration statement referred to in this Section 1, for sale in accordance with the method of disposition specified by the Holder, shares of Common Stock to be sold by other selling stockholders or by the Company for its own account, except as and to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing extent that, in its opinionthe opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering), the such inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority marketing of the Registrable Securities proposed Shares to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holderssold.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate The Rightholders of 51% or more a majority of all Registrable Securities, voting as a single class, shall have the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a right, exercisable by giving written request notice to the Company, to require the Company shall cause there to be filed with the Commission file a registration statement meeting the requirements of under the Securities Act to register the offer and sale of all or any portion of such holders’ (in either case, the “Rightholders”) Registrable Securities in the Company (in either case, a “Demand Registration”), and each Demanding Holder ; provided that the Company shall not be entitled obligated to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made effect a registration pursuant to this Section 2.1 if 2.1(a) (other than a registration on Form S-3 or any successor form from and after the time the Company is eligible to use Form S-3 or any successor form, as applicable, as to which the Rightholders shall have unlimited rights to require the Company to effect a registration) on more than three occasions. In the event of such a demand, the Company shall, within six twenty (620) months prior to days of the date receipt thereof, give written notice of such request a Demand Registration Statement pursuant to this Section 2.1 all other Rightholders. In the event that any such Rightholders wish to participate in the registration (the “Opt-in Shareholders”), they shall have been declared effective by so advise the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention Company within twenty (20) days of the Secretary receipt of the Company, such notice and shall specify include in their notice the number of Registrable Securities they desire to so register. Notwithstanding any other provision of this section, if the managing underwriter determines that marketing factors require a limitation on the number of shares to be registeredunderwritten, then the Company shall so advise the Opt-in Shareholders which would otherwise be underwritten pursuant to this provision, and the number of shares that may be included in the underwriting shall be allocated to the Opt-in Shareholders in proportion, as nearly as practicable, to the respective amounts of Common Shares held by such Opt-in Shareholders at the time of filing the registration statement.; provided, further, that the number of shares owned by the Rightholders to be included in such underwriting and registration shall not be reduced unless all other securities held by other shareholders of the Company are first entirely excluded from the underwriting and registration. The managing underwriter(s) for such offering shall be selected by the Company with the prior written approval of the Rightholders holding a majority of the Common Shares held by Rightholders to be offered for sale pursuant to the Demand Registration, which approval shall not be unreasonably withheld. In the event the Company has not selected an underwriter approved by such Rightholders within thirty (30) days of the Rightholders’ notice, the intended methods Rightholders holding a majority of disposition thereof and that the request is Common Shares held by Rightholders to be offered for sale pursuant to the Demand Registration may select the underwriter. The Company shall not be deemed to have effected a Demand Registration pursuant to this Section 2.1(i)2.1(a) unless the Rightholders shall have sold that number of shares representing at least fifty percent (50%) of the Registrable Securities requested to be registered by the Rightholders.
(iib) The Company shall be entitled to may postpone for up to one hundred twenty (120) 120 days the filing or effectiveness of any a registration statement with respect to a Demand Registration statement otherwise required if the Company furnishes to be prepared and filed Rightholders requesting a registration pursuant to this Section 2.1, if 2.1 a certificate signed by the Board determinesCompany’s chief executive officer stating that, in its the good faith reasonable judgment (with the concurrence of the managing underwriterCompany’s Board of Directors, if any), that it would be materially detrimental to the Company and its stockholders for such registration and statement to be filed during the Transfer period of such postponement for one or Registrable Securities contemplated thereby more of the following reasons: (i) the filing of such registration statement during such period would materially interfere withwith an acquisition, corporate reorganization or require premature disclosure of, any financing, acquisition or reorganization involving other transaction that the Company or any would disclose in a periodic report filed pursuant to the Securities Exchange Act; (ii) the filing of its wholly owned subsidiaries and such registration statement during such period would require disclosure of material, non-public information relating to the Company promptly gives which the Demanding Holders notice Company has a bona fide business purpose for preserving as confidential; or (iii) the filing of such determinationregistration statement during such period would result in the Company’s inability to comply with applicable requirements of the Securities Act; and it is therefore necessary to defer the filing of such registration statement for such period; provided, however, that the Company shall may not have postponed pursuant to invoke this Section 2.1(ii) right more than once in any 12-month period. In the filing event of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Sharespostponement, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), Rightholders shall be entitled to have all or any number of withdraw such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Companyand if withdrawn, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a such Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand Registration, upon the earlier Registration for purposes 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiatedSection 2.1(a).
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holders.
Appears in 1 contract
Demand Registration. (ia) If one At any time after the publication by the Parent of financial results covering at least 30 days of post Merger combined operations, upon written notice from the Representatives (as hereinafter defined) in the manner set forth in Section 11(h) hereof requesting that the Parent effect the registration under the Securities Act of any or more Holders that own an aggregate of 51% or more all of the Registrable Securities then outstanding (Securities, which notice shall specify the “Demanding Holders”) shall at any time make a written request to the Companyintended method or methods of disposition of such Registrable Securities, the Company Parent shall cause there use its reasonable best efforts to be filed with effect, in the Commission a manner set forth in Section 5, the registration statement meeting the requirements of under the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission for disposition in accordance with the Securities Act for an offering on a delayed intended method or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registrationstated in such request, the Company shallprovided that:
(i) File if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), Parent is advised in writing (with a copy to the registration statement with Holder requesting registration) by the Commission as promptly as practicable, and shall use lead underwriter of the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicableproposed offering described below that, in each instance giving due regard such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by Parent as to the need which Parent was In Registration prior to prepare current financial statementsreceipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), conduct due diligence and complete other actions that are reasonably necessary Parent shall not be required to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 2(a) until the earliest of (A) the abandonment of such offering or (B) 120 days after receipt by the Holder requesting registration of the lead underwriter's written opinion referred to above in this subsection (i));
(ii) if, while a registration request is suspended orpending pursuant to this Section 2(a), Parent has determined in good faith that the filing of a registration statement would require the disclosure of material non-public information that Parent has a bona fide business purpose for preserving as confidential, Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or Parent is able to so comply with applicable SEC requirements, as the case of a Demand Registrationmay be, postponed as permitted by Section 2.1(ii), the foregoing period and (2) 90 days after Parent makes such good-faith determination;
(iii) Parent shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall not be obligated to effect file a registration statement relating to a registration request pursuant to this Section 2: (A) if such registration request is for a number of Registrable Securities with a then market value of less than $150 million or (B) more than 36 months have elapsed since the Effective Time;
(iv) at least four months have elapsed since the last request made by the Representatives on behalf of any Holders; and
(v) no more than three Demand Registrations and such number demands under this Section 2 shall be required to be honored.
(b) Notwithstanding any other provision of Shelf Registrations as may be necessary this Agreement to provide each and every Substantial the contrary:
(i) a registration requested on behalf of a Holder with the right pursuant to request one Shelf Registration. For purposes of the preceding sentencethis Section 2, registration shall not be deemed to have been effected (iand, therefore, not requested for purposes of subsection 2(a)), (A) unless a the registration statement filed with respect thereto to such Holder's Registrable Securities has become effective, effective or (iiB) if after it has become effective such registration statement has become effective, such registration 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 Commission SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, all of the Registrable Securities requested to be registered cannot attributable to be distributed in accordance with the Selling Holders and such interference is not thereafter eliminated, plan of distribution set forth in the related registration statement or (iiiC) if the conditions to closing specified in the purchase agreement or underwriting agreement, if any, agreement entered into in connection with such registration are not satisfied or waived, (other than by reason of an act or omission by such Holder) or waived by the underwriters; and
(ii) a failure on registration requested by a Holder pursuant to this Section 2 and later withdrawn at the part request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2(a)), whether withdrawn by the Selling Holders. If Holder prior to or after the Company shall have complied effectiveness of such requested registration, unless such request is withdrawn by a Holder prior to the filing of a registration statement with its obligations under this Agreement, a right to demand a the SEC; and
(c) In the event that any registration pursuant to this Section 2 shall be deemed to have been satisfied (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3involve, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 whole or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investorsin part, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, a Holder shall have the right to select the designate an underwriter or underwriters and reasonably satisfactory to Parent as a co-manager or managers to administer of such underwritten offering or and Parent shall have the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be right to designate the lead underwriter reasonably acceptable satisfactory to the CompanyHolder of such underwritten offering.
2.7. Whenever (d) Parent shall have the Company shall effect right to cause the registration of additional securities for sale for the account of any person (including Parent) in any registration of Registrable Securities requested by a registration Holder pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders 2(a); provided that Parent shall not have the right to cause the registration of Registrable Securities: (i) such additional securities if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder person is advised in writing (with a copy to the Parent) by the lead underwriter that, in its such firm's good faith opinion, the inclusion registration of more than one class of Registrable Securities such additional securities would materially and adversely affect such offering, the Demanding Holders holding at least a majority offering and sale of the Registrable Securities proposed to be sold therein then contemplated by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling HoldersHolder.
Appears in 1 contract
Demand Registration. (ia) If one or more Holders that own an aggregate At any time following the Effectiveness Period, the holders of 51Restricted Stock constituting at least 25% or more of the Registrable Restricted Stock outstanding at such time may request the Company to register under the Securities then outstanding (Act all or any portion of the “Demanding Holders”) Restricted Stock held by such requesting holder or holders for sale in the manner specified in such notice. The Company shall at any time make have no obligation to effect a written request registration under this Section 5 unless the aggregate offering price of the securities requested to be sold pursuant to such registration is, in the good faith judgment of the Company, expected to be equal to or greater than $7.5 million.
(b) Promptly following receipt of any notice under this Section 5, the Company shall cause there immediately give written notice to be filed with the Commission any holders of Restricted Stock from whom notice has not been received, and shall file and use its reasonable efforts to have declared effective a registration statement meeting under the requirements Securities Act, for public sale in accordance with the method of disposition specified in such notice from such requesting holders the number of shares of Restricted Stock specified in such notice (and in any notices received from other such holders of Restricted Stock within 20 days after their receipt of such notice from the Company). If such method of disposition shall be an underwritten public offering, the Company may designate the managing underwriter of such offering which shall be a firm of recognized national standing, subject to the approval of the Securities Act selling holders of a majority of the Restricted Stock included in the offering, which approval shall not be unreasonably withheld. The number of shares of Restricted Stock to be included in such an underwriting may be reduced (a “Demand Registration”), pro rata among all of the requesting holders based on the number of shares requested by each holder to be included) if and each Demanding Holder to the extent that the managing underwriter shall be entitled of the opinion that such inclusion would adversely affect the marketing of the securities to have included therein (subject be sold therein. Notwithstanding anything to Section 2.7) all or such number the contrary contained herein, the obligation of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to Company under this Section 2.1 5 shall be deemed satisfied only when a registration statement covering all shares of Restricted Stock specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holder, shall have become effective and, if within six (6) months prior to the date such method of disposition is a firm commitment underwritten public offering, all such request a Demand Registration Statement pursuant to this Section 2.1 shares shall have been declared effective by the Commission. Any request made sold pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i)thereto.
(iic) The Company shall be entitled to postpone for up to one hundred twenty (120) days 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 (with the concurrence Each of the managing underwriter, if any), that such registration Company and holders of Common Stock other than the Transfer or Registrable Securities 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 Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”)Restricted Stock, shall be entitled to have all or include in any number registration statement referred to in this Section 5 for which the method of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission distribution is an underwritten public offering, for sale in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in by the request pursuant to Section 2.1(i) or Section 2.2requesting holders, respectively. The Company agrees to file all reports required shares of Common Stock to be filed sold by the Company with the Commission in a timely manner so as to remain eligible for its own account, or become eligiblesuch other stockholders, as the case may be, except to the extent that, in the opinion of the managing underwriter, such inclusion would adversely affect the marketing of the Restricted Stock to be sold. Except as provided in this paragraph (c) or pursuant to the Company's Second and thereafter to maintain its eligibilityAmended Restated Registration Rights Agreement dated April 20, for the use of Form S-3. If the Company is not eligible at any time after 1999, as amended through the date hereof and as it may be amended to use Form S-3reflect the registration rights contemplated by the Agreement to Sublease (the "Second Amended and Restated Agreement") or as it may be amended solely to add additional parties, in order to fulfill its obligations under Section 2(i) the Company shall file will not effect any other registration of its Common Stock, whether for its own account or that of other holders, from the date of receipt of a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after notice from requesting holders pursuant to this Section 5 until the Company first meets completion of the period of distribution of the registration eligibility and transaction requirements for contemplated thereby.
(d) Notwithstanding anything to the use of Form S-3 for registration of the offer and sale by the Investorscontrary contained herein, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration register Restricted Stock pursuant to this Section 2 in connection with an underwritten offering by 5 on one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata basis among all Selling Holdersoccasion only.
Appears in 1 contract
Sources: Registration Rights Agreement (Spectrasite Holdings Inc)
Demand Registration. Rights
(ia) If Subject to the limitations set out in Section 4.1(b) and the Intercap Lock- up Agreements, upon the written request (the “Demand Notice”) of an Intercap Shareholder (each an “Intercap Demanding Shareholder”), made at any time and from time to time as long as the Intercap Shareholders, as a group, own, control or direct, directly or indirectly, in the aggregate, at least 10% of the then-outstanding Shares, the Company will, subject to Applicable Securities Laws, Applicable U.S. Securities Laws and applicable stock exchange requirements, use reasonable commercial efforts to file one or more Holders that own Registration Statements or prospectus supplements under any existing Registration Statement, if an aggregate offering shall be made contemporaneously in the United States, and take such other steps as may be reasonably necessary to facilitate an offering in Canada and the United States, if applicable, of 51% all or more any portion of the Registrable Securities then outstanding Shares held by the Intercap Demanding Shareholder and, in the Intercap Demanding Shareholder’s sole discretion but subject to Section 4.14, Shares held by any of the Released Shareholders that such Released Shareholders wish to Distribute and described in the Demand Notice (the “Demanding HoldersQualifying Shares”) shall at ), plus any time make a written request to the Company, the Company shall cause there other Shares to be filed with the Commission a registration statement meeting the requirements of the Securities Act included in such Distribution pursuant to Section 4.1(g) (a “Demand Registration”), . The Company and each the Intercap Demanding Holder Shareholder shall be entitled to have included therein (subject to Section 2.7) all or cooperate in a timely manner in connection with such number disposition and the procedures in Schedule A of such Demanding Holder’s Registered Shares, as the Demanding Holder this Agreement shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary 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 pursuant to this Section 2.1(i)apply.
(iib) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Notwithstanding Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any4.1(a), that such registration and the Transfer or Registrable Securities 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 be obliged to effect a Demand Registration:
(i) if, within any twelve-month period, the Company has already effected two (2) Demand Registrations pursuant to Section 4.1(a). For the purposes of this Section 2.1(ii) the filing of any other Subsection, a Demand Registration statement otherwise required shall not be considered as having been effected until (a) a receipt has been issued by, or deemed to be prepared and issued by, the applicable Canadian Securities Regulatory Authorities for a final prospectus pursuant to which the Qualifying Shares are to be Distributed, or (b) a prospectus supplement in connection with a base shelf prospectus is filed pursuant to this Section 2.1 during which the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities Qualified Shares are to be registeredDistributed. However, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of if an Intercap Demanding Shareholder withdraws or does not pursue a request for a Demand Registration after (A) filing a preliminary prospectus pursuant to which the Qualifying Shares are to be Distributed or a Shelf Registration, (B) the Company shall:
(i) File the registration statement entering into of an enforceable bought deal letter or an underwriting or agency agreement in connection with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of provided that at such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 time the Company shall have complied is in compliance in all material respects with its obligations under this Agreement), a right to demand a registration pursuant to this Section 2 then such Demand Registration shall be deemed to have been satisfied (i) if a Demand 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 two hundred seventy (270) days, and be effected. (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) within 90 days after the date of filing completion of such Registration Statement a previous Demand Registration; (or amendment). Notwithstanding iii) during the foregoing, period starting 14 calendar days prior to and ending upon the Company shall use its commercially reasonable efforts to meet the requirements expiry of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable black-out periods applicable to the Company.
2.7. Whenever , except as may be otherwise agreed by the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative underwriters managing such offering; (iv) that is a Demand Registration in respect of Shares that would reasonably be expected to result in gross proceeds of less than $10 million; (v) in a jurisdiction outside any of the provinces and territories of Canada or Agent advises each such Selling Holder in writing that, in its opinionthe United States (unless otherwise agreed among the Company, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority of the Registrable Securities proposed to be sold therein by them, shall decide which class of Registrable Securities shall be included therein in underwriters managing such offering and the related registrationIntercap Demanding Shareholder); or (vi) in the event that the Board (with Intercap Directors abstaining) determines in its good faith judgement that there is a Valid Business Reason (as defined below) and that it is, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing thattherefore, in its opinion, the amount of securities requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be included in such offering and the related registration, to the extent best interests of the amount Company to defer the filing of a Prospectus and/or a Registration Statement or any prospectus supplement under any existing Registration Statement, if applicable, at such time, in which can case the Company’s obligations under this Section 4.1 will be sold within deferred for a period of not more than 90 calendar days from the date of receipt of the Demand Notice; provided that such price rangeright of deferral may not be exercised more than once in any one (1) year period. For the purposes of this Section 4.1(b)(vi), and on a pro rata basis among all Selling Holders.“Valid
Appears in 1 contract
Sources: Side Letter to the Investor Rights Agreement (Docebo Inc.)
Demand Registration. From and after the earlier of (ix) If date that is one or more calendar year after the date hereof, (y) the occurrence of a Seller Breach, and (z) the date that the Purchaser no longer owns 5% of the outstanding Common Stock, in each case after receipt of a written request from the Holders that own an aggregate of 51owning 50% or more of the Registrable Securities then outstanding (the “Demanding Holders”) shall at any time make a written request to the Company, of each class requesting that the Company shall cause there to be filed with effect the Commission registration of all or a registration statement meeting the requirements portion of the Securities Act (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, and specifying the intended method or methods of disposition thereof and that (a "Holder Notice"), the request Company shall, as expeditiously as is possible, use its reasonable best efforts to effect the registration for a Demand Registration pursuant sale under the Securities Act of all shares of Registrable Securities which the Company has been so requested to this Section 2.1(i).
(ii) The Company shall be entitled register by such Holders, all to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise extent required to be prepared and filed pursuant to this Section 2.1, if permit the Board determines, disposition (in its good faith reasonable judgment (accordance with the concurrence intended method or methods thereof, as aforesaid) of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities 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 determinationso registered; provided, however, that the Company shall not have postponed be required to effect more than one (1) registration of any Registrable Securities pursuant to this Section 2.1(ii2(a) except as otherwise expressly provided herein. Notwithstanding any provision of this Agreement to the filing of any other Demand Registration statement otherwise required contrary, however, the rights granted to be prepared the Purchaser and filed the Holders pursuant to this Agreement including, without limitation, this Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”2(a), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with irrevocably terminated upon the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary 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 Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt occurrence of a request for Purchaser Breach. 5 If the managing underwriter of a Demand Registration or a Shelf Registration, proposed public offering shall advise the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration 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 Commission or other governmental agency or court 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 (i) if a Demand 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 two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the request pursuant to Section 2.1(i) or Section 2.2, respectively. The Company agrees to file all reports required to be filed by the Company with the Commission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. 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, or the Initiating Substantial Holder, as the case may be, 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; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
2.7. Whenever the Company shall effect a registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (i) if such Selling Holders have requested the inclusion therein of more than one class of Registrable Securities, and the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the inclusion of more than one class of Registrable Securities would adversely affect such offering, the Demanding Holders holding at least a majority distribution of the Registrable Securities proposed requested to be sold therein included in the registration concurrently with the securities being registered by themthe Company or such other registering security holders would materially and adversely affect the distribution of such securities by the Company or such registering security holders, shall decide which class of Registrable Securities shall be included therein in such offering and then the related registration, and Company may require all selling security holders (other than the other class shall be excluded; and (iiCompany) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, to reduce the amount of securities each intended to distribute through such offering on a pro rata basis; provided, however, that if the Company requires such reduction, and if Holders requesting such registration pursuant to this Section 2(a) are unable to include in such registration Registable Securities that they requested be included in such registration in the related Holder Notice that constitute Substantial Market Value Securities, due to such pro rata reduction (the Registrable Securities that such Holder so requested to be included in such offering (whether by Selling Holders or others) exceeds the amount which can be sold in such offering within a price range acceptable to the Majority Selling Holders, securities shall be registration that were not included in such offering registration due to such pro rata reduction being referred to herein as the "Reduction Shares", and the related registrationregistration in which such reduction occurred being referred to herein as a "Failed Registration"), then subject to the other provisions hereof applicable to a demand registration the Holders of the Reduction Shares shall have the right, exercisable commencing on the day that is two calendar months after the termination of the Registration Period relating to the Failed Registration by written notice sent to the Company by Holders of 50% of the Reduction Shares (a "Repurchase/Register Notice"), to require the Company to elect (at the Company's option) to either register the Reduction Shares otherwise pursuant to this Section 2(a) or, if the foregoing offer to sell or resulting sale is then lawful, to repurchase the Reduction Shares at the higher of (i) the price per share for which Registrable Securities were actually sold in the Failed Registration, or (ii) the Market Price on the date the Repurchase/Register Notice is sent to the Company in compliance with this Agreement; provided, however, that the Holders shall not be deemed hereby or thereby to have made any offer to sell to the Company that does not comply with applicable law and the Company shall not be entitled or deemed to be entitled to repurchase such Reduction Shares or to be offered the right to or solicit the right to repurchase such Reduction Shares or deemed to have bid for such Reduction Shares hereby or thereby if such repurchase, offer, or bid would violate any applicable securities law; and provided further, however, that any such repurchase shall otherwise comply with the procedures applicable to the Company's right to repurchase securities upon the occurrence of a Purchaser Breach set forth in Article VIII of the Stock Purchase Agreement, to the extent that such procedures do not conflict with the provisions hereof, without requirement for the occurrence of a Purchaser Breach. The Company shall respond to such Repurchase/Register Notice by written notice to the Purchaser within 30 business days after its receipt of the amount Repurchase/ Register Notice (an "Election Notice"), which can Election Notice shall set forth whether the Company desires to so register such Reduction Shares or to repurchase such Reduction Shares; provided, however, that the Company shall be sold deemed to have elected to register such Reduction Shares if it does not give such notice within such price range30 business day period. If the Company so elects to repurchase such Reduction Shares, and on a pro rata basis among all Selling Holdersif the Market Price requires an agreement of the Company and such holders as to the fair market value of such Reduction Shares, the consummation of such repurchase shall not be required to be consummated until as 6 soon as practicable after such fair market value has been determined as set forth in the definition of Market Price set forth herein.
Appears in 1 contract
Sources: Registration Rights Agreement (Crown Northcorp Inc)