Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso 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) Subject to Except as provided in Section 2.2(b) below, upon the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), written request of the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act owning not less than ten percent (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 regulations10%) of the Registrable Securities that the Company has been effect pursuant to this Agreement the registration of the resale of the Registrable Securities under the Securities Act (which request shall specify the Registrable Securities so requested to registerbe 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, however that (i) the Holders shall not make 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 if 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 good faith judgment of the Registrable Securities pursuant to such Demand Registration may be in the form Board 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 Directors of the Company, which approval shall not such registration would be unreasonably withheld or delayed 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 (together with furnish to such Holders a certificate signed by an executive officer of the Holders proposing Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to distribute their securities through defer the filing of such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with registration statement, then the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement Company shall have indemnification provisions 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 include in substantially any registration statement filed pursuant to this Section 2.2: (A) securities of the form as set forth in Section 4.9 Company held by any other security holder of this Agreement; provided, that (i) the representations and warranties byCompany, and the other agreements on the part of(B) in an underwritten public offering, securities of the Company to be sold by the Company for its own account, except as and for to the benefit extent that (x) in the opinion of the underwriter(s) shall also be made to and for the benefit managing underwriter (if such method of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder disposition shall be required to make any representations and warranties toan underwritten public offering), or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) such inclusion would adversely affect 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 marketing of the Registrable Securities disposed of to be sold by such Holder pursuant to such Underwritten Offering. No Holder may participate Holders or (y) 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 terms reasonable opinion of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 Holders owning a majority 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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders Proposed Amount of Registrable Securities to be included in (if such Underwritten Offering and (ii) method of disposition is not an underwritten public offering), such inclusion would adversely affect the Company will be obligated and required to 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, price at which such Registrable Securities may be sold pursuant to be allocated pro rata among the Holders thereof on the basis plan of the 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 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 75% of the Registrable Securities requested to be included in the registration 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 theretodistribution; provided, however, that if, after such registration statement has been filed, the managing underwriter believes that the inclusion of all securities requested to be included in the proposed underwritten public offering would adversely affect the marketing of the Registrable Securities or, in the case of a distribution that is not an underwritten public offering, 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 the Company and such other security holders of the Company shall be reduced so as to permit the offering of all Registrable Securities requested by all the Holders of the entire Proposed Amount of Registrable Securities without such adverse effects.
(b) The Company shall not be obligated to take any action to effect 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 registration has been declared or ordered effective, such two year period to commence on the date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the expiration 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 by 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, (iii) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, court for any reason other than a misrepresentation or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered an omission by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementHolders, or (iiiii) if, if the conditions to closing specified in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied other than by reason of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration some wrongful act or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution omission, or act or omission in bad faith, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)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. (a) Subject to the provisions hereoflimitations contained in Section 2(b), at any time on or after the date that is 180 days three months after the Closing Date (as defined 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 any portion of the Registrable Securities then held by such Primary Holders, for sale in the Merger Agreementmanner specified in such notice (including, but not limited to, an underwritten public offering) (a “Demand Registration”). In each such case, the Holders of a majority 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 have use its best efforts to file with the right 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 require cause such registration statement to become effective within sixty (60) 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 managing 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 Registration Statement registering for sale all or part shelf registration statement within fifteen (15) days after receipt of their respective 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 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 registered pursuant to Section 2 hereof may interfere with an orderly sale and distribution of or may materially adversely affect the 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 on Form S-3 pursuant to Rule 415 of the Securities Act (a “Demand RegistrationShelf Takedown”) by delivering a written request therefor ), including, subject to the limitations set forth in Section 2(b), an underwritten Shelf Takedown. Notwithstanding the foregoing, such Primary Holders may not demand a Shelf Takedown for an offering that will result in the imposition of a lockup on the Company and the Primary Holders unless the shares requested to be sold by the Primary Holders in such takedown have an aggregate market value (ibased on the most recent closing price of the Common Stock at the time of the demand) specifying the number of at least $10 million.
(f) If any Demand Registration of Registrable Securities to be included is in such registration by such Holder or Holders, (ii) specifying whether the intended method form of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company Primary Holders shall (x) promptly notify all Holders from whom select and obtain one or more investment banking firms of national or regional reputation to act as the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky managing underwriter or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) underwriters of the Registrable Securities that the Company has been so requested to registeroffering; provided, however, that such firm or firms shall, in any case, also be approved by the Company, such approval not to be unreasonably withheld, delayed or conditioned. An investment banking firm or firms selected pursuant to this Section 2(a)(vi) shall be referred to as the “Approved Underwriter” herein.
(ig) 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 shall and not make 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 request for sensible manner.
2.2 The obligations of the Company to effect, or to take any action to effect, a Demand Registration under or an underwritten Shelf Takedown shall be limited as follows:
(a) In connection with the provisions of this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002, (ii) the Primary Holders will not be entitled to may require the Company to effect no more than three (3) Demand Registrations or underwritten Shelf Takedowns in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any 365 day period during the six (6) month year period commencing on the Rights Effective Date. After the expiration of the such period, the Company shall no longer have any obligation to file Demand Registrations at the request of the Primary Holders.
(b) The offering For the avoidance of doubt, until the six (6) year anniversary of the Rights Effective Date, there shall be no limit on the number of non-underwritten Shelf Takedowns that Primary Holders may request (but after such date, Primary Holders shall no longer have the right to make any such requests), and, 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 Company for an underwritten, public 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 Holders3.
(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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 3 contracts
Sources: Registration Rights Agreement (Lightyear Fund Ii Lp), Merger Agreement (Vantagesouth Bancshares, Inc.), Merger Agreement (YADKIN FINANCIAL Corp)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Stockholders (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make 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 Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) 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 ofhereof, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) 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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Demand Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Members on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be 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 Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 3 contracts
Sources: Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings (New) LLC)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Lockup Date, the Holders of Company shall receive a majority of Registrable Securities shall have written request from the right to require Investor that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of the Registrable Securities specified in such written request (a “Demand Registration”) by delivering a written request therefor to the Company (i) ), specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowinformation set forth under Section 6.4(i), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 6.1(e), the 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 regulationsof 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) of the Registrable Securities so to be registered, provided, that the Company has been so requested shall not be required to register; provided, however, that effect (i) the Holders shall not make 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) such 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 period 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 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings such Demand Registrations in any twelve (12) month period, and 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 any Underwritten Offering during any lock-up period required connection with such revoked Demand Registration within thirty (30) days of written request therefor by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersCompany.
(c) IfFor 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 an Underwritten 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 involves an underwritten Public Offering and the managing underwriter(s) advise advises the Company that and the Investor that, in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numberview, 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 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 number of Registrable Securities requested to be included therein in such registration by each such Holder. No shares the Investor, the Company and for the account of Common Stock held by any Person other than Persons exceeds the largest number of Registrable Securities held that can be sold without having a material adverse effect on such offering, including the 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 Holders 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 be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiesdetermine.
(de) A Upon notice to the Investor, the Company may postpone effecting a registration pursuant to this Section 6.1 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).
(f) Notwithstanding any provision in this Section 6.1 or elsewhere in this Agreement, no provision relating to the registration of Registrable Securities shall be deemed construed as permitting the Investor to have effect a Transfer of securities that is otherwise prohibited by the terms of this Agreement or any other agreement between the Investor and the Company or any of its Subsidiaries.
(g) Notwithstanding the foregoing, no Demand Registration shall count as having been effected as a for purposes of the proviso to Section 6.1(a) (and the Company shall pay or reimburse all Registration Expenses pursuant to Section 6.5) if (i) 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 the SEC and the Investor revokes such Demand Registration unless prior to such registration statement being declared effective, (ii) prior to the Registration Statement relating thereto has been declared effective by the SEC, sale of at least 75% of the Registrable Securities requested to be included in the applicable registration relating to such request, such registration is adversely affected 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason and the Company fails to have such stop order, injunction or other order or requirement removed, withdrawn or resolved to the Investor’s reasonable satisfaction within thirty (30) days of the date of such order, or if (iii) the conditions to closing specified in the underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the Investor).
(h) Upon written request of the Investor following the Lockup Date, the Company will use its commercially reasonable efforts to qualify for registration on and to promptly file, Form S-3 or any court prevents comparable or otherwise limits 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 the registration, and the sale on a continuous or delayed basis, of the Registrable Securities pursuant to Rule 415. Upon filing a Short-Form Registration, the registrationCompany will, if applicable, use its commercially reasonable efforts to: (i) cause such Short-Form Registration to be declared effective, and (ii) keep such Short-Form Registration effective with the SEC at all times and re-file such Short-Form Registration upon its expiration. The Company shall cooperate in each case less than all any shelf take-down by amending or supplementing the prospectus statement related to such Short-Form Registration as may be requested by the Investor or any transferees or as otherwise required, until the Investor or any transferees who would require such registration to effect a sale of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of no longer hold the Registrable Securities covered by such registration, then or until the time specified in Section 6.14 hereof. The Company shall continue to be obligated to effect a Demand will pay all Registration pursuant to this Section 4.2 of the Registrable Securities included Expenses incurred in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or connection with any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Short-Form Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 3 contracts
Sources: Stockholder Agreement (China Investment Corp), Stock Purchase Agreement (China Investment Corp), Stockholder Agreement (Aes Corp)
Demand Registration. (a) Subject to the provisions hereof, If at any time on following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or after the date that is 180 days after the Closing Date more underwriters (as defined in the Merger Agreementunless waived by such underwriter(s)), the Holders of Company shall receive a majority of Registrable Securities request (each such request shall have the right be referred to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (herein as a “Demand Registration”) by delivering from a written request therefor Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) specifying for the number first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities to be included in such registration by such Holder then outstanding (or Holdersany lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying whether the intended method of disposition thereof thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is pursuant to an Underwritten Offering (as defined below)given by the Requesting Shareholder, file a registration statement under the Securities Act, and (iiiii) containing use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all information about such Holder required Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be included in registered by the Requesting Shareholder that any other Shareholders (all such Registration Statement Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with applicable law. As soon the intended methods thereof 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 (y) use reasonable best 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 regulationsaforesaid) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 Offeringregistered, 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 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofthat, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration by the Holders are included in statement relating to such registration, and the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedrevoking such request. Notwithstanding clause (d) below, howevera request, that ifso revoked, after it has become effective, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Statement Expenses in connection with such revoked request) or (ii) the related offerRequesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, sale regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or distribution of such shorter period in which all Registrable Securities thereunder of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits court.
(e) If the sale of the Registrable Securities pursuant Requesting Shareholder intends to the registration, and in each case less than all of distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the effective Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration Statement involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are actually not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the selling Holder or Holders Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the Registration Statementnotice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) if, in effecting the case registration would require the premature disclosure of an Underwritten Offeringmaterial information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company fails shall not be obligated to provide Full Cooperationeffect, then such or to take any action to effect, any registration will be deemed not pursuant to have been effected for purposes of clause Section 2.01 during the period that is thirty (ii30) days before the Company’s good faith estimate of the proviso to Section 4.2(a). If date of filing of, and ending on a date that is ninety (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (4590) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationeffective date of, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all Company-initiated registration (other than a registration on Form S-8 or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationsuccessor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso statement to Section 4.2(a)become effective.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Sol-Gel Technologies Ltd.), Registration Rights Agreement (Sol-Gel Technologies Ltd.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after six month anniversary of the Closing Date consummation by the Company of the IPO, if the Company shall receive a written request from either or both Sponsors holding outstanding Registrable Securities for itself and its respective Co-Invest Vehicles (as defined in the Merger Agreement)such requesting Persons, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Shareholders”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Shareholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least ten (10) days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities Registration Statement relating to be included in such registration by such Holder or HoldersDemand Registration to the other Sponsor, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)if applicable, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandany other Shareholder that holds Registrable Securities, the Company and thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such effect, as expeditiously as possible, the 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 of:
(i) all Registrable Securities for which the Requesting Shareholders have requested registration under this Section 4.01, and
(ii) subject to the restrictions set forth in Section 4.01(d), all other Registrable Securities that any other governmental requirements Shareholders that hold Registrable Securities (all such Shareholders, together with the Requesting Shareholders, the “Registering Shareholders”) have requested the Company to register by request received by the Company within five (5) Business Days after any non-initiating Sponsor received the Company’s notice of the Demand Registration, or regulationsany other Shareholder pursuant to and in accordance with Section 4.02, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that no Person may participate in any Registration Statement pursuant to this Section 4.01(a) unless such Person agrees to sell their Registrable Securities to the Company has been so requested underwriters selected as provided in Section 4.05(f) on the same terms and conditions as apply to registerthe Requesting Shareholders; provided, howeverfurther, that (i) the Holders shall not make 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 no 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 4.9 of this Agreement; 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 Registering Shareholders shall be required to make any representations and warranties toor warranties, or agreements withprovide any indemnity, in connection with any underwriter in a such registration other than customary representationsrepresentations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, warranties her or its Registrable Securities to be transferred free and agreements clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Shareholders as may be reasonably requested; provided, further, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each Holder such Person will be in respect of any indemnificationproportion thereto; provided, contribution or other obligation of further, that such Holder arising under such underwriting agreement (a) shall liability will 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 received by such Holder (after deduction of all underwriters’ discounts and commissions) Person from the disposition sale of the his, her or its Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder registration; provided, further, that, notwithstanding anything to the contrary herein, the number of Registrable Securities that a Shareholder may participate request to include in any a Demand Registration (including pursuant to Section 4.02) cannot exceed the number of Registrable Securities, determined by multiplying the aggregate number of Registrable Securities held by such Underwritten Offering unless such Holder agrees Shareholder by a fraction, the numerator of which is the number of Registrable Securities that the Requesting Shareholder proposes to sell its in such Demand Registration and the denominator of which is the total number of Registrable Securities on held by such Requesting Shareholder prior to such Demand Registration, and provided, further, that the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in the registration by the Holders are included all Registering Shareholders in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or are at least $25,000,000.
(iib) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at At any time prior to the commencement effective date of marketing the Registration Statement relating to such registration, a majority of the Requesting Shareholders (measured by the number of Registrable Securities proposed to be sold by all Requesting Shareholders and not by the number of Requesting Shareholders) may revoke such request without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request. The decision as to whether to consummate and as to the terms of any Demand Registration shall be made by a majority of the Requesting Shareholders (measured by the number of Registrable Securities proposed to be sold by all Requesting Shareholders and not by the number of Requesting Shareholders) in their sole and absolute discretion.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected; provided that such registration nonetheless holders of Registrable Securities shall count pay all underwriting discounts, selling commissions and share transfer taxes applicable to the sale of their respective Registrable Securities, but fees and disbursements of their respective counsel shall be borne and paid by the Company as a Registration Expense.
(d) If a Demand Registration for purposes involves a Public Offering and the managing underwriter advises the Company and the Requesting Shareholders that, in its view, the number of clause Registrable Securities that the Registering Shareholders and the Company propose to include in such registration exceeds the largest number of Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (ii) of the proviso “Demand Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to Section 4.2(a).the Demand Maximum Offering Size:
Appears in 3 contracts
Sources: Shareholder Agreement (Avista Capital Partners III GP, L.P.), Shareholders Agreement (Osmotica Pharmaceuticals PLC), Shareholder Agreement (Osmotica Pharmaceuticals PLC)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Date, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. 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 (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a3.2(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 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 4.9 3.9 of this Agreement; provided, that 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numbermaximum 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 only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numbermaximum number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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(a3.2(a). If (i) a registration requested pursuant to this Section 4.2 3.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 3.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 3.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d3.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a).
Appears in 3 contracts
Sources: Voting Agreement (Cousins Properties Inc), Stockholders Agreement (Cousins Properties Inc), Voting Agreement (Parkway Properties Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or commencing one year after the date that is 180 days after Effective Date of the Closing Date (as defined in the Merger Agreement)Public Offering, and expiring five years thereafter, the Holders of a majority of Registrable Securities representing more than 50% of such securities at that time outstanding shall have the right (which is in addition to require 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 file comply with the provisions of the Act, so as to permit a Registration Statement registering for public offering and sale all or part of their respective Registrable Securities under for nine consecutive months (or such longer period of time as permitted by the Securities Act (a “Demand Registration”Act) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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) Holders of any of the Registrable Securities that 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 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) 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 commencing one year after the Effective Date of the Public Offering, and expiring five 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 prepare and file, on one occasion, with the Commission a registration statement or any other appropriate disclosure document so requested as to registerpermit a public offering and sale for nine consecutive months (or such longer period of time as permitted by the Act) by any such Holder of Registrable Securities; provided, however, that the provisions of Section 7.4(b) shall not apply to any such registration request and registration and all costs incident thereto shall be at the expense of the Holder or Holders participating in the offering pro-rata.
(d) Any written request by the Holders made pursuant to this Section 7.3 shall:
(i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 Specify the 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 which the Holders shall be included in a Demand Registration without intend to offer and sell and the prior written consent minimum price at which the Holders intend to offer and sell such securities;
(ii) State the intention of the holders Holders to offer such securities for sale;
(iii) Describe the intended method of a majority in interest distribution of such securities; and
(iv) Contain an undertaking on the part of the Registrable SecuritiesHolders to provide all such information and materials concerning the Holders and take all such action as may be reasonably required to permit the Company to comply with all applicable requirements of the Commission and to obtain acceleration of the effective date of the registration statement.
(de) A In the event the Company receives from the Holders of any Registrable Securities representing more than 50% of such securities at that time outstanding, a request that the Company effect a registration will not be deemed on Form S-3 with respect to have been effected the Registrable Securities and if Form S-3 is available for such offering, the Company shall, as a Demand Registration unless soon as practicable, effect such registration as would permit or facilitate the Registration Statement relating thereto has been declared effective by the SEC, at least 75% sale and distribution of the Registrable Securities requested to be included as are specified in the registration by the Holders are included request. All expenses incurred in such registration, and the Company has complied in all material respects connection with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been Subsection (e) shall be borne by the Company. Registrations effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does Subsection (e) shall not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration counted as registrations pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause Sections 7.3 (iia) of the proviso to Section 4.2(aand 7.3 (c).
Appears in 3 contracts
Sources: Representative's Warrant Agreement (U S Remodelers Inc), Representative's Warrant Agreement (U S Remodelers Inc), Representative's Warrant Agreement (U S Remodelers Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date effective date of the registration statement for the IPO of the Company’s Common Stock, either Investor (as defined the “Initiating Holder”) may notify the Company that it intends to offer or cause to be offered for public sale all or any portion of its Registrable Securities in the Merger Agreement)manner specified in such request. Upon receipt of such request, the Holders Company shall promptly deliver notice of a majority such request to all other holders of Registrable Securities who shall then have ten (10) days to notify the Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to require participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the Company to file a Registration Statement registering for sale all or part inclusion of their respective such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable best efforts to expeditiously effect (but in any event no later than ninety (90) days after such request) the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act, but only to the extent provided for in this Agreement; provided however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 (i1) specifying more than three (3) times for each Investor, or (2) if the number of Registrable Securities proposed to be included in such registration are expected to have an aggregate sale price (net underwriting discounts and commissions, if any) less than $50,000,000. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within one hundred twenty (120) days after the effective date of a registration statement filed by such Holder or Holders, (ii) specifying whether the intended method Company covering a firm commitment underwritten public offering in which the holders of disposition thereof is Registrable Securities shall have been entitled to join pursuant to an Underwritten Offering (Section 4 and in which there shall have been effectively registered all Registrable Securities as defined below), to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) unless and (iii) containing all information about until the registration statement relating to such Holder required to be 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 (y) use reasonable best 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 declared effective by the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerCommission; provided, provided however, that (i) the Holders shall not make participating Investors holding a request for a Demand Registration under this Section 4.2(a) for majority of the Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, being registered by all participating Investors (a “Participating Majority”) or (ii) the Holders will Initiating Holder, only to the extent no such Investor holds a majority of the Registrable Securities 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 be entitled to require yet been declared effective, and a Participating Majority (or Initiating Holder, as applicable) may thereafter request the Company to effect more than three (3) Demand Registrations 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 aggregate number of demand registrations permitted under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodSection 2(a).
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of If a requested registration involves an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate and 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 4.9 of this Agreement; 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 offering determines 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) Registrable Securities requested by of the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum NumberManagement Stockholders, such and (vi) Registrable Securities to be allocated pro rata among of the Holders thereof on the basis Investors. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (v) or (vi), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number 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 Securitiessuch holders).
(dc) A With respect to a request for registration will not pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective chosen by the SEC, at least 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration Participating Majority or (ii) the registration requested pursuant Initiating Holder, only to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders extent no such Investor holds a majority of the Registrable Securities covered being registered by such registration, then the Company shall continue to all participating Investors (which approval will not be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all unreasonably withheld or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(adelayed).
Appears in 2 contracts
Sources: Registration Rights Agreement (Intapp, Inc.), Registration Rights Agreement (Intapp, Inc.)
Demand Registration. (a) Subject to the provisions hereofIf, on or at any time on 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 holding at least 50% of the Registrable Securities (collectively, the “Demand Holder”) requesting that the Company effect the registration under the 1933 Act of any or all of the Registrable Securities held by the Demand Holder, which notice shall specify the amount and intended method or methods of disposition of such Registrable Securities, including pursuant to a shelf registration statement utilizing Rule 415 (a “Shelf Registration”), the Company shall, within five days after receiving the Demand, give written notice (the “Request Notice”) of such registration request 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 that is 180 days after of the Closing Date (as defined in the Merger AgreementDemand), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use its reasonable best 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 cause to be declared effective under the Securities 1933 Act, a Registration Statement to effect the registration under the 1933 Act and any other governmental requirements or regulationsof (i) of the such Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request for a Demand Registration Holder under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, the Demand and (ii) the Holders will not be entitled to require Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by written request to the Company will not 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 obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering of the Registrable Securities A registration requested 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 this Section 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 2.02 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto unless: (i) it has been declared effective by the SECSEC or has otherwise become effective under the 1933 Act and remains effective for not less than 180 days, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationor, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) 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 related offer, delivery of a Prospectus in connection with the sale or distribution of Registrable Securities thereunder is by an underwriter or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, dealer; or (ii) if, in it has been filed with the case of an Underwritten Offering, SEC but abandoned or withdrawn at the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) request of the proviso Demand Holder prior to Section 4.2(a). If effectiveness, other than an abandonment or withdrawal requested because of: (iA) the stock price of the Common Stock falling 15% or more since the delivery of a request for registration requested pursuant to this Section 4.2 is deemed not to have been effected 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 the contrary:
(i) if the filing of a Registration Statement in respect of a Demand would require the Company to make an Adverse Disclosure, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing of such Registration Statement 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, (B) 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 the expiration of any period during which it exercised its rights under this Section 2.02(c)(i);
(ii) the registration requested Company shall not be obligated to file a 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 4.2 does not remain continuously effective until forty-five 2.02;
(45iii) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily may elect to withdraw all or any part of its Registrable Securities from a Demand Registration registration pursuant to this Section 2.02 at any time 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, 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 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 the registration of the Registrable Securities issuable upon exercise of the Warrants by such Holder (subject to such exercise occurring prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) completion of the proviso sale of the underlying Registrable Securities prior to Section 4.2(asuch registration), notwithstanding the fact that at the time of the request such Holder 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. All expenses (aother than underwriting discounts and commissions) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date incurred in connection with a registration requested under Section 2 (which right may be assigned as defined provided in the Merger AgreementSection 1), filings or qualifications pursuant to Section 2, including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Corporation, and the reasonable fees and disbursements of one counsel for the selling Holders selected by Holders of a majority of the Registrable Securities to be registered, shall be borne by the Corporation; provided, however, that the Corporation shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all participating Holders shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying bear such expenses pro rata based upon the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested were to be included in the registration by the Holders are included in such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); providedprovided further, however, that ifif at the time of such withdrawal, after it has become effective, the selling Holders have (i) such Registration Statement learned of a material adverse change in the condition, business, or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement prospects of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Corporation from that known to the registration, and in each case less than all selling Holders at the time of the Registrable Securities covered their request or have been advised by the effective Registration Statement are actually sold by underwriter that the selling Holder or Holders pursuant to the Registration Statement, or registration should be withdrawn (either a “Withdrawal Event”) and (ii) if, in have withdrawn the case request with reasonable promptness following the occurrence 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationWithdrawal Event, then the Company selling Holders shall continue not be required to be obligated to effect a Demand Registration pay any of such expenses and shall retain their rights pursuant to this Section 4.2 2. If the Holders are required to pay any expenses, such expenses shall be borne by the holders of the securities (including Registrable Securities included Securities) requesting such registration in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior proportion to the commencement number of marketing of such Demand Registrationsecurities for which registration was requested. If the Corporation is required to pay the expenses due to a Withdrawal Event, provided that such registration nonetheless then the Holders shall count as not forfeit their rights to a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)demand registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fluence Energy, Inc.), Registration Rights Agreement (Fluence Energy, Inc.)
Demand Registration. (ai) Subject to the provisions hereof, at Request for Registration. At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)time, the Holders of a majority Purchased Shares representing not less than 25% of the aggregate number of Registrable Securities (or any lesser amount if the request relates to all remaining Registrable Securities) (the "Demand Party") may make two written requests for registration under the Act of their Registrable Securities (a "Demand Registration"); provided, that no transferee of the Investors or of any such transferee shall have be permitted to request a registration pursuant to this Section 2(a) unless the right to require make such a request was specifically transferred by the Company Investors (or any transferee) to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written such transferee. Any such request therefor to the Company (i) specifying shall specify the number of Registrable Securities proposed to be included in such registration by such Holder or Holders, (ii) specifying whether sold and will also specify the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required method of disposition to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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, Company if it is other than a firm commitment underwritten public offering (which approval shall not be unreasonably withheld or delayed and (ii) withheld). Subject to the other provisions of this Section 2(a), 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 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 give written notice of such Holder arising under such underwriting agreement (a) shall be limited registration request within 10 days after the receipt thereof 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 all 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 Holders. Within 15 days after receipt of such Holder expressly for inclusion therein and (b) shall not in notice by any eventHolder, 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. No Holder may participate request in any such Underwritten Offering unless such Holder agrees to sell writing that 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds (whether or not such Registrable Securities are of the Underwriters’ Maximum Number, then (isame series or class as the Registrable Securities that were the subject of the original demand) and the Company shall so advise all Holders of include in the Demand Registration the Registrable Securities of any such Holder requested to be included in so included. Each such Underwritten Offering and (ii) the Company will be obligated and required to 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 request shall specify the number of Registrable Securities requested proposed to be included therein by each sold and the intended method of disposition thereof, such Holder. No shares method of Common Stock held by any Person disposition to be subject to the approval of the Company if it is other than Registrable Securities held by a firm commitment underwritten public offering (which approval shall not be unreasonably withheld). Upon a demand, 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.Company will:
(dx) A registration will not be deemed prepare and file within 30 days after a request has been made and use its reasonable best efforts to have been effected cause to become effective as promptly as reasonably commercially practicable (but in any event use its reasonable best efforts to cause to become effective within 90 days of such demand) a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% in respect of all the Registrable Securities requested to be included in the registration by the which Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequest for inclusion therein; provided, however, that if, after it has become effective, and
(iy) keep such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five for the shorter of (45A) 90 days after the commencement and (B) such period of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 time as all of the Registrable Securities included in such Registration Statement have been sold thereunder (the shorter of (A) or (B), the "Effectiveness Period"); provided, that if such demand occurs during a Black Out Period (as defined below) or other period (not to exceed 180 days) during which the Company is prohibited or restricted from issuing or selling securities pursuant to any underwriting or purchase agreement relating to an underwritten Rule 144A offering or registered public offering of securities (a "Lock Up Period"), the Company shall notify the Demand Party of the basis therefore and shall not be required to notify the Holders of such demand or file such Registration Statement prior to the end of the Black Out Period or Lock Up Period, as the case may be, in which event, the Company will use its reasonable best efforts to cause such Registration Statement to become effective no later than the later of (A) 150 days after the original demand and (B) 90 days after the end of the Black Out Period or Lock Up Period, as the case may be; and provided, further, that the Company may postpone the filing of any Registration Statement (and, in the case of a Pending Event Suspension Period only, suspend the effectiveness of any registration, suspend the use of any Prospectus and shall not be required to amend or supplement the Registration Statement, any related Prospectus or any document incorporated therein by reference (other than an effective Registration Statement being used in an underwritten offering)) (A) for a period not to exceed an aggregate of 90 days (a "Pending Event Suspension Period") in the event that (1) an event or circumstance occurs and is continuing that has not been publicly disclosed and, if not disclosed in the Registration Statement, any related Prospectus or any document incorporated therein by reference as then amended or supplemented would, in the Company's good faith reasonable judgment, result in the Registration Statement, any related Prospectus or any such document containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein, or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (2) in the good faith judgment of the Board of Directors of the Company (the "Board"), after consultation with its outside securities counsel, the Company has a bona fide business purpose for not then disclosing the existence of such event or circumstance or (B) in the event that the Company, for its own account or the account of others, has pending or is currently engaged in the process of and proposes to register shares of Common Stock for sale in an underwritten public offering on Form ▇-▇, ▇-▇ or S-3, their successor forms or any other form under the Securities Act appropriate for a public offering of such securities (other than a registration on Form S-8), for a period not to exceed 60 days after the consummation of such public offering (a "Pending Registration Suspension Period" and, together with a Pending Event Suspension Period, a "Black Out Period"); provided, further, that the Effectiveness Period shall be extended by the number of days in any Black Out Period occurring during the Effectiveness Period. In circumstances not including the events described in event of the immediately two preceding sentences occurrence of this Section 4.2(d)any Black Out Period or Lock Up Period, each Holder the Company will promptly notify the Holders of Registrable Securities thereof in writing. If the Company shall be permitted voluntarily postpone the filing of a Registration Statement, the Holders of Registrable Securities requesting registration thereof shall have the right to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior the request for registration by giving written notice to the commencement Company within 30 days after receipt of marketing notice of postponement from the Company and, in the event of such Demand Registrationwithdrawal, provided that such registration nonetheless request shall count as a Demand Registration not be counted for purposes of clause (ii) of the proviso requests permitted to be made under this Section 4.2(a2(a). The Company shall not be permitted to assert more than one Black Out Period in any consecutive 180-day period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cabletron Systems Inc), Registration Rights Agreement (Aprisma Management Technologies Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 If the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request from ▇▇▇ Equity (the “Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or any portion of the Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Additional Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 of:
(i) all Registrable Securities for which the Requesting Stockholder and the other holders have has requested registration under this Section 5.01, and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholder that any other governmental requirements or regulationsStockholders with rights to request registration under Section 5.02 (all such Stockholders, together with the Requesting Stockholder, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make 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 Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 5.01(d) 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 ofhereof, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two ten (210) Underwritten Offerings in Demand Registrations, (y) more than one Demand Registration during any twelve (12) four-month period, and or (bz) 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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $10 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholder may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyseventy-five percent (4575%) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than fifty percent (50%) of the Registrable Securities of the Requesting Stockholder sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholder that, in its view, the number of Company Securities that the Registering Stockholder and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be 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 Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Stockholders’ Agreement (Papa Murphy's Holdings, Inc.), Stockholders’ Agreement (Papa Murphy's Holdings, Inc.)
Demand Registration. (ai) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), Upon written notice of the Holders of a majority of the then outstanding Registrable Securities shall have the right to require (on a common stock equivalent basis) requesting that the Company to effect a registration under the Securities Act of Registrable Securities and specifying the intended method or methods of distribution thereof (which may include a continuous or delayed offering), the Company shall prepare and file a Registration Statement registering for sale all or part of their respective Registrable Securities on Form S-3 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act, or other appropriate Form in the event Form S-3 is not available, covering the Registrable Securities then outstanding and shall use commercially reasonable efforts to cause such Registration Statement to become effective as expeditiously as possible and to remain effective until the Company earlier to occur of (i) specifying the number of date on which all Registrable Securities to be included in such registration covered by such Holder Registration Statement have been sold and the distribution contemplated thereby has been completed or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing date by which all information about such Holder required to be 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 (y) use reasonable best 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 covered thereby may be sold under Rule 144(k) (the Company has been so requested to register"Effectiveness Period"); provided, however, that (i) the Holders Purchaser shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by demands to register 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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities pursuant to be included in such Underwritten Offering and (iithis Section 6(a)(i). A demand registration requested pursuant to this Section 6(a)(i) the Company will be obligated and required to 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared become effective by under the SECSecurities Act and remains effective for the period described above.
(ii) A Holder (including the Purchaser) or Holders requesting a registration pursuant to this Section 6(a) may, at least 75% any time prior to the effective date of the Registrable Securities requested Registration Statement relating to be included in the registration by the Holders are included in such registration, and revoke such request by providing a written notice to the Company has complied revoking such request.
(iii) The Company may include any other securities in all material respects with its obligations under any demand registration effected pursuant to this Agreement with respect theretoSection 6(a); provided, however, that if, after it has become effective, (iif the managing underwriter(s) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement representative(s) of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits several underwriters (the sale "Managing Underwriter") of a proposed underwritten public offering of Common Stock advises the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant intending to participate in such offering in writing that the Registration Statement, total amount or (ii) if, in the case kind of an Underwritten Offering, securities which such Holders and the Company fails intend to provide Full Cooperation, then include in such registration will be deemed not offering is sufficiently large to have been effected for purposes materially adversely affect the success of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationoffering, then the amount or kind of securities to be offered for the accounts of the Company shall continue be reduced pro rata to the extent necessary to reduce the total amount or kind of securities to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including proposed public offering to the events described amount or kind recommended by such Managing Underwriter and, if such reduction results in no securities being offered for the immediately two preceding sentences accounts of this Section 4.2(d)the Company in such proposed public offering, each Holder then the amount or kind of Registrable Securities securities to be offered for the account of the Company shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior reduced to the commencement extent necessary to reduce the total amount or kind of marketing of securities to be included in such Demand Registration, provided that proposed public offering to the amount or kind recommended by such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)managing underwriter or underwriters.
Appears in 2 contracts
Sources: Stock Purchase and Registration Rights Agreement (Northshore Asset Management LLC), Stock Purchase and Registration Rights Agreement (Startech Environmental Corp)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after expiration of the Closing Date (as defined transfer restrictions contained in the Merger AgreementSection 2.1(a), so long as the Holders Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Shareholder (a majority "Requesting Shareholder") shall be entitled to make a written request of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering "Demand") for sale all or part of their respective Registrable Securities registration 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”) by delivering a written request therefor to the Company (i) specifying based on the number of Registrable Securities to be included in outstanding on the date such registration by such Holder or Holders, Demand is made) (iia "Demand Registration") specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, thereupon the Company shall (x) promptly notify all Holders from whom will, subject to the request for registration has not been received and (y) terms of this Agreement, use its commercially reasonable best efforts to effect such the 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 regulationsof:
(i) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities that the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 5.1(b); and
(iii) all Common Shares that the Company will not may elect to register in connection with any offering of Registrable Securities pursuant to this Section 5.1, 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 obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 aggregate number of Registrable Securities requested to be included therein 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 Shareholder (or Requesting Shareholders). Subject to Section 5.1(g), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held by with respect to which the Holders Company has received a written request for inclusion therein within ten (10) days after the initial Demand.
(c) The Shareholders, collectively, shall be included in a entitled to an aggregate of six (6) Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistrations.
(d) A registration will Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless the Registration Statement relating a registration statement with respect thereto has been declared become effective by the SEC, and has remained effective for a period of at least 75% of the sixty (60) days (or such shorter period in which all Registrable Securities requested to be included in the registration by the Holders are included in such registrationDemand Registration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (ii) if, after it has become effective, (i) such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of to any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, (iii) if the conditions to closing specified in the purchase agreement or if underwriting agreement entered into in connection with such Demand Registration are not satisfied as a consequence of any court prevents act or otherwise limits omission by the sale 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 registration statement for any Demand Registration if the Board determines in good faith and 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 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 pursuant held by the Requesting Shareholder(s) shall have the right to the registration, and withdraw such Demand in each case less accordance with Section 5.3.
(g) The Company shall not include any securities other than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Registration, except with the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement written consent of the distribution by the Holders of the Registrable Securities covered by Shareholders participating in such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 that hold a majority of the Registrable Securities included in such registrationDemand Registration. In circumstances If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Company) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the events described Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter can be sold without such adverse effect as follows and in the immediately two preceding sentences following order of this Section 4.2(d)priority: (i) first, each Holder up to the number of Registrable Securities shall requested to be permitted voluntarily included in such Demand Registration by the Shareholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Shareholders requesting such Demand Registration on the basis of the number of such securities requested to withdraw be included by such Shareholders and such Shareholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any part of its Registrable Securities from such other method determined by the Company.
(h) Any time that a Demand Registration at any time prior involves an Underwritten Offering, the Company shall select the investment banker or investment bankers and managers that will serve as lead and co-managing underwriters with respect to the commencement of marketing offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Registrable Securities.
Appears in 2 contracts
Sources: Shareholder Agreement (Aircastle LTD), Shareholder Agreement (Aircastle LTD)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined The Company may include in the Merger Agreement), the Holders of a majority of Demand Registration Registrable Securities shall have for the right to require account of the Demanding Holders and shares of Common Stock for the account of the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws stockholders exercising contractual piggy-back registration rights or other stockholders, on the same terms and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of conditions as the Registrable Securities that are included therein for the Company has been so requested to registeraccount of the Demanding Holders; provided, however, that (i) the Holders shall not make 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 if the managing underwriter(s) of any underwritten offering that is the Underwritten Offering, provided that subject of 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) Demand Registration have informed the Company shall (together with in writing that in their opinion the Holders proposing to distribute their total number of securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with that 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 ofDemanding Holders, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 stockholders intend to include in such Underwritten Offering only that offering exceeds the number of Registrable Securities requested by which can be sold in such offering within a price range acceptable to 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 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 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 75% of the Registrable Securities requested to be included therein, then (x) the number of Shares to be offered for the account of any stockholders other than the Demanding Holders shall be reduced (to zero, if necessary) pro rata in proportion to the registration respective number of Shares requested to be registered by such stockholders, and (y) thereafter, if necessary, the Holders are number of Shares 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 Shares requested to be included in such registrationoffering to the number of Shares, if any, recommended by such managing underwriter(s) (and if the number of Shares to be offered for the account of stockholders other than the Demanding Holders and for the account of the Company has been reduced to zero, and the Company has complied number of Shares requested to be included in all material respects with its obligations under this Agreement with respect thereto; providedsuch offering by the Demanding Holders exceeds the number of Shares recommended by such managing underwriter(s), however, then the number of Shares to be offered for the account of the Demanding Holders shall be reduced pro rata in proportion to the respective number of Shares requested to be registered by the Demanding Holders) and (ii) if the offering that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop ordersuch Demand Registration is not underwritten, injunction or only Demanding Holders, and no other order or requirement party (including the Company), shall be permitted to include securities in such Demand Registration unless the Demanding Holders owning a majority of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities Shares included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior consent in writing to the commencement of marketing inclusion of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)securities therein.
Appears in 2 contracts
Sources: Registration Rights Agreement (Royal Ahold), Registration Rights Agreement (Peapod Inc)
Demand Registration. (a) Subject to the provisions hereof, If at any time on following the first anniversary of the Effective Date, the Company shall receive a request from any Stockholder, or after the date group of Stockholders, that is 180 days after the Closing Date (as defined holds in the Merger Agreement)aggregate 20% (or, if the Holders First Public Offering has occurred, any Stockholder, or group of a majority Affiliated Stockholders, that holds in the aggregate 10%) or more of Registrable Securities shall have the right to require then outstanding Common Stock (the "Requesting Stockholder") that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) of all or any portion of such Requesting Stockholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give notice of such requested registration (xeach such request shall be referred to herein as a "Demand Registration") promptly notify all Holders from whom at least 20 Business Days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the other Stockholders and (y) thereupon shall use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(h) andSection 2.09, all other Registrable Securities that any other governmental requirements or regulationsStockholders (all such other Stockholders, together with the Requesting Stockholders, the "Registering Stockholders") have requested the Company to register by request received by the Company within 20 Business Days after such Stockholders receive the Company's notice of the Demand Registration (such request shall include all information with respect to such Stockholder required to effect the registration of such Stockholder's Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that so to be registered, provided that, subject to Section 2.01(d)(g), the Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 4 Demand Registrations (at least one (1) Demand Registration in any six (6) month period.
(b) The offering of which shall be available for use after the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”First Public Offering has occurred). 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 4.9 of this Agreement; provided, that (i) the representations and warranties by, and provided further that 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then a Demand Registration unless (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 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 aggregate market price or fair value on the basis date of the 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 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 75% request of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $25,000,000 or (ii) the number of Common Shares requested to be registered pursuant to such Demand Registration equals or exceeds 10% of then outstanding Common Shares on the date of such request. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(b) Promptly after the expiration of the 20 Business Day-period referred to in Section 2.01(a)(ii), the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration by the Holders are included in statement relating to such registration, and the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedrevoking such request. A request, howeverso revoked, that if, after it has become effective, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Statement Expenses in connection with such revoked request), or (ii) the related offerRequesting Stockholders reimburse the Company for all Registration Expenses of such revoked request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, sale regardless of whether such Registration is effected, except as set forth in Section 2.01(b).
(d) Any registration statement filed pursuant to a Demand Registration shall be a shelf registration statement that complies with the provisions of Rule 415 under the Securities Act, unless otherwise agreed by the Requesting Stockholder and at least one other Stockholder, or distribution group of Affiliated Stockholders, if any, that holds in the aggregate 20% or more of the then outstanding Registrable Securities thereunder (a "Second Large Holder"); provided that the first registration statement filed pursuant to a Demand Registration after the First Public Offering shall be a shelf registration statement that complies with the provisions of Rule 415 under the Securities Act.
(e) Unless otherwise agreed with the Requesting Stockholder and at least one Second Large Holder, if any, any registration of the Company's Common Stock pursuant to this Section 2.01 shall be effected solely for the purpose of registering the offer and sale of the Common Stock held by the Registering Stockholders and shall not be effected for any offer or sale by the Company of securities by the Company.
(f) If requested by any Stockholder, or group of Stockholders, that holds in the aggregate 20% (or, if the First Public Offering has occurred, any Stockholder, or group of Affiliated Stockholders, that holds in the aggregate 10%) or more of the then outstanding Common Stock, the Company shall use its best efforts to have the Common Stock quoted on the Nasdaq National market or listed on a national securities exchange, in each case as designated by such Requesting Stockholder so long as the Company is subject to the reporting requirements under the Exchange Act, whether or not as a result of a Demand Registration, and otherwise qualifies for such quotation or listing.
(g) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days, or in the case of a shelf registration statement, two years (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes the subject of effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not including registration statement have been sold thereunder; or
(ii) if the events described Maximum Offering Size is reduced in accordance with Section 2.01(h) such that less than 662/3% of the immediately two preceding sentences Registrable Securities of this Section 4.2(d)the Requesting Stockholders sought to be included in such registration are included.
(h) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, each Holder in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company shall be permitted voluntarily include in such registration, in the priority listed below, up to withdraw the Maximum Offering Size:
(i) first, all or any part of its Registrable Securities from a Demand Registration at requested to be registered by any time prior Registering Stockholders (allocated, if necessary for the offering not to exceed the commencement Maximum Offering Size, pro rata among such entities on the basis of marketing the relative number of such Demand Registration, provided that Registrable Securities so requested to be included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each), and
(ii) second, subject to Section 2.01(e), any securities proposed to be registered for the account of the proviso Company.
(i) Upon notice to each Registering Stockholder, the Company may postpone effecting a registration pursuant to this Section 4.2(a2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 60 days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of such 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 reasonably believes would not be in the best interests of the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (McLeodUSA Holdings Inc), Registration Rights Agreement (McLeodusa Inc)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date Partnership shall receive a written request (a “Demand Notice”) from the Demand Committee that is 180 days after the Closing Date (as defined in Partnership effect the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act of all or any portion of the Registrable Securities specified in the Demand Notice (a “Demand Registration”) by delivering a written request therefor ), specifying the information set forth under Section 2.5(j), then the Partnership shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the Company (i) specifying the number of Registrable Securities to be included restrictions in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowSection 2.2(d), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 regulationsof the Registrable Securities for which the Demand 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 that the Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 periodregistered.
(b) The offering At any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration, the Demand Committee may revoke 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 request by providing a co-managing underwriter to participate in the Underwritten Offering, subject notice 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 Partnership revoking 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 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 request. The Partnership shall be required to make liable for and pay all Registration Expenses in connection with 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 HoldersDemand Registration.
(c) IfIf a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Partnership and the Demand Committee that, in connection with an Underwritten Offeringits view, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed units of Registrable Securities requested to be included in such registration exceeds the Underwriters’ 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 (the “Maximum NumberOffering Size”), then the Partnership shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) the Company shall so advise first, 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 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 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 registered in the Demand Registration by the Holders Demand Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, in such proportions as shall be included in a determined by the Demand Registration without Committee);
(ii) second, any securities proposed to be registered by the prior written consent Partnership or any securities proposed to be registered for the account of any other persons, with such priorities among them as the holders of a majority in interest of the Registrable SecuritiesPartnership shall determine.
(d) A registration 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Upon notice to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten OfferingDemand Committee, 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) Partnership may postpone effecting a registration requested pursuant to this Section 4.2 is deemed 2.2 on up to three occasions during any period of six consecutive months for a reasonable time specified in the notice but not to have exceeding 120 days in the aggregate (which period may not be extended or renewed), if (i) the General Partner shall determine in good faith that effecting the registration would materially and adversely affect an offering of securities of the Partnership the preparation of which had then been effected as a Demand Registration commenced or (ii) the registration requested pursuant to this Section 4.2 does Partnership is in possession of material non-public information the disclosure of which during the period specified in such notice the General Partner believes in good faith would not remain continuously effective until forty-five (45) days after be in the commencement best interests of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Partnership.
Appears in 2 contracts
Sources: Registration Rights Agreement (Blackstone Group L.P.), Registration Rights Agreement (Blackstone Group L.P.)
Demand Registration. (a) Subject to the provisions hereofconditions of this Section 2.1, at any time on or after the date if FS receives a written request from JL 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 to FS file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act covering the registration of all or a part of its Registrable Securities, then FS shall use its commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that it has requested to be registered (a “Demand Registration”) by delivering a written such request therefor to the Company (i) specifying include the number of Registrable Securities sought to be included in such registration by such Holder or Holders, (ii) specifying whether and the intended method or methods of disposition thereof is pursuant to an Underwritten Offering (as defined belowdistribution of such Registrable Securities), subject to and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandterms, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received conditions, procedures, and (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 limitations contained 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 . JL 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effective date of marketing the registration statement relating to a requested registration under this Section 2.1 revoke its request by providing written notice to FS, in which case the Registration Expenses will be borne in accordance with Section 2.4.
(b) FS shall not be required to effect a registration pursuant to this Section 2.1:
(i) after FS has effected one registration 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 opportunity to register and sell 100% of such Demand Registrationits Registrable Securities initially requested to be registered pursuant thereto, provided except that such a registration nonetheless the request for which has been revoked by JL shall count as a Demand Registration having been effected unless the revocation is based upon material adverse information concerning the business or financial condition of FS of which JL was not aware at the time of its request for purposes of clause registration;
(ii) during the period starting with the date of filing of, and ending on the proviso date 90 days following the effective date of, a registration statement pertaining to any underwritten public offering in which JL was given the opportunity to participate pursuant to Section 4.2(a)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. (a) Subject to the provisions hereof, If at any time on or after following the date that is 180 days after the Closing Date (as defined in the Merger Agreement)IPO, the Holders of Company shall receive a majority of Registrable Securities shall have written request (a “Demand Notice”) from the right to require Equity Committee that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of the Registrable Securities specified in the Demand Notice (a “Demand Registration”) by delivering a written request therefor to the Company (i) ), specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 2.2(d), the 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 regulationsof the Registrable Securities 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 that so to be registered. Notwithstanding the Company has been so requested to register; providedforegoing, however, that (i) the Holders Equity Committee shall not make a request for a be entitled to ten Demand Registration under Registrations pursuant to this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002.2, (ii) the Holders will not Equity Committee shall be entitled to require the Company to effect no more than three (3) Demand Registrations in the aggregate under this Agreementone demand registration during any six-month period, and (iii) the Company will shall not be obligated to effect more than one (1) make a Demand Registration with respect to the Equity Committee in any six the event that a Fifth Anniversary Registration or Piggyback Registration (6as defined below) month periodhad been available to the Equity Committee within the 180 days preceding the date of the Demand Notice.
(b) The offering At any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration, the Equity Committee may revoke 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 request by providing 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 4.9 of this Agreement; 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 notice to the Company by or on behalf of revoking 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. 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 terms of such underwriting agreementrequest. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings liable for and pay all Registration Expenses in connection with any twelve (12) month period, and (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 HoldersDemand Registration.
(c) IfIf a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Equity Committee that, in connection with an Underwritten Offeringits view, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed shares of Registrable Securities requested to be included in such registration exceeds the Underwriters’ largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum NumberOffering Size”), then 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 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 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 120 days (which period may not be extended or renewed), if (i) the Company shall so advise all Holders determine in good faith that effecting the registration would materially and adversely affect an offering of Registrable Securities to be included in securities of such Underwritten Offering and company the preparation of which had then been commenced or (ii) the Company will be obligated and required to include is in possession of material non-public information the disclosure of which during the period specified in such Underwritten Offering only that number of Registrable Securities requested by notice the Holders thereof to Company believes in good faith would not 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 best interests of the 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 SecuritiesCompany.
(d) A registration 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 2 contracts
Sources: Registration Rights Agreement (Evercore Partners Inc.), Registration Rights Agreement (Evercore Partners Inc.)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be 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 (y) use reasonable its best efforts to effect cause such registration statement to become effective (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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration 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 theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that 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 registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 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 requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until fortybe unreasonably withheld. In the event there is one or more co-five (45) days after managers, the commencement first such co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the distribution Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Holders 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 Registrable same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, however, that if the managing underwriter(s) advises the Requesting Shareholder, the Non-Requesting Shareholder and Vail that, in its judgment, the number of shares proposed to be included in such offering exceeds the largest number of Vail Securities covered by which can be sold without having an adverse effect on such registrationoffering, including the price at which such securities can be sold (the "Marketable Number"), then the Company shall continue total number of shares to be obligated included in such offering shall be limited as follows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the Non-Requesting Shareholder propose to effect a Demand Registration pursuant sell up to this Section 4.2 the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the Registrable relative number of Vail Securities that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause and (ii) second, all the shares of Vail Securities that Vail proposes to sell, which does not exceed the proviso difference, if any, between the Marketable Number and that number of shares which the Requesting Shareholder and the Non-Requesting Shareholder have included pursuant to Section 4.2(a)clauses (i) and (ii) above.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc), Shareholder Agreement (Vail Resorts Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after six month anniversary of the Closing Date consummation by the Company of the IPO, if the Company shall receive a written request from a Sponsor or Sponsors holding outstanding Registrable Securities (as defined in the Merger Agreement)such requesting Persons, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholders”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least ten (10) days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such effect, as expeditiously as possible, the 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 of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 7.01, and
(ii) subject to the restrictions set forth in Section 7.01(d), all other Registrable Securities that any other governmental requirements or regulationsStockholders (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within seven (7) days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that no Person may participate in any registration statement pursuant to this Section 7.01(a) unless such Person agrees to sell their Registrable Securities to the Company has been so requested underwriters selected as provided in Section 7.05(f) on the same terms and conditions as apply to registerthe Requesting Stockholders; provided, however, that (i) the Holders shall not make 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 no 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 4.9 of this Agreement; 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 Registering Stockholders shall be required to make any representations and warranties toor warranties, or agreements withprovide any indemnity, in connection with any underwriter in a such registration other than customary representationsrepresentations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, warranties her or its Registrable Securities to be transferred free and agreements clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each Holder such Person will be in respect of any indemnificationproportion thereto; and provided, contribution or other obligation of further, that such Holder arising under such underwriting agreement (a) shall liability will 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 Statementto, 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 received by such Holder (after deduction of all underwriters’ discounts and commissions) Person from the disposition sale of the his, her or its 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 registration; provided that, the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in the registration by the Holders are included all Registering Stockholders in such registrationDemand Registration are at least $25,000,000.
(b) Promptly after the expiration of the seven-day period referred to in Section 7.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution number of shares of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationtherein. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at At any time prior to the commencement effective date of marketing the registration statement relating to such registration, a majority of the Requesting Stockholders may revoke such request without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected; provided that such registration nonetheless holders of Registrable Securities shall count pay all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Stockholder, except for the fees and disbursements of the Stockholders borne and paid by the Company as a Registration Expense.
(d) If a Demand Registration for purposes involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of clause Registrable Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (ii) of the proviso “Demand Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to Section 4.2(a).the Demand Maximum Offering Size:
Appears in 2 contracts
Sources: Stockholders Agreement (INC Research Holdings, Inc.), Stockholders Agreement (INC Research Holdings, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at At any time and from time to time on or after the date that is 180 days and/or after the Closing Date Date, each Holder shall severally have the option and right, exercisable by delivering a written notice to Parent (as defined in the Merger Agreementa “Demand Notice”), the Holders of a majority of Registrable Securities shall have the right to require Parent to, pursuant to the Company terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering for the offering and sale all or part of their respective the number and type of Registrable Securities under on the Securities Act terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying ). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition 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 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 2.1(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. If at any time the Commission takes the position that some or all of the Registrable Securities proposed to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is a Registration Statement filed pursuant to an Underwritten Offering a Demand Registration must be removed from such Registration Statement (as defined below)such portion of the Registrable Securities, and (iiithe “Cut Back Shares”) containing in order for all information about of the Registrable Securities in such Holder required 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 Registration Statement, within two Business Days) after the 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, subject to the limitations of this Section 2.1, file a Registration Statement in accordance with applicable law. As soon as practicable after the receipt terms and conditions of such demandthe Demand Notice, the Company which Registration Statement shall (x) promptly notify cover all Holders from whom the request for registration has not been received and (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make a in writing request for a to be included in the Demand Registration under (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 4.2(a) for 2.1(b)). Parent shall use 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 having an anticipated aggregate offering price included on any previous Registration Statement that ceases to be effective, which, for the avoidance 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 doubt 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 considered an underwriting agreement in customary form additional Demand Registration 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 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 Section 2.1(c)) under the Securities Act until all such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees securities registered for resale thereunder cease to sell its be 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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“Effectiveness Period”).
(c) IfSubject 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 connection with an Underwritten Offeringno event shall Parent be required to effect more than two Demand Registrations within a given calendar year, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (iiC) the Company will be obligated and required a subsequent Demand Registration pursuant to 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 a Demand Notice if a Registration Statement covering all of the 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 Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be included deemed to have occurred for purposes of this Section 2.1(c) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in a which case the Initiating Holder shall be entitled to an additional Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitieslieu thereof.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECHolder (and, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationif applicable, and the Company has complied in Carlyle) may withdraw all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale portion of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the its Registrable Securities included in a Demand Registration from such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effectiveness of marketing 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, 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 (a “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 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 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 effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by Parent and (B) subject to applicable law and the requirements of the Commission, as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that, subject to Section 3.15, (X) if the Registration Statement is on Form S-1, Parent shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities 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), provided that such registration nonetheless shall count as 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 for purposes any offering and selling of clause Registrable Securities shall be registered on Form S-3 or any equivalent or successor form under the Securities Act (iiif available to Parent) and (Z) if at the time of its receipt of a Demand Notice, Parent is a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be registered on an Automatic Shelf Registration Statement on Form S-3 or any equivalent or successor form under the Securities Act (if available to Parent). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Parent that it intends to effect an offering of all or part of the proviso Registrable Securities included on such Registration Statement, 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 4.2(a)2.1, Parent shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Parent would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by 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 necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall Parent be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the 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 under) such Registration Statement, other 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. (a) Subject to the provisions hereof, The Company hereby agrees that at any time on or after the date that is 180 days after one year from the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require Purchaser may request that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of 1933, as amended (the "Securities Act") of all or part of their respective Registrable Securities the Purchased Securities, and thereupon will, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Purchased Securities that which the Company has been so requested to registerregister by the Purchaser, all to the extent requisite to permit the disposition of the Purchased Securities so to be registered; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (afile any such registration statement under this Section 9(a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by unless the underwriter(s) in any prior underwritten anticipated aggregate gross offering conducted by the Company on its own behalf or on behalf of the Holdersprice is at least $2,000,000.
(ci) If, The Company shall pay all of the expenses in connection with an Underwritten Offeringthe registration statement filed pursuant to this Section 3(a), except for underwriting discounts and commissions and transfer taxes, including, but not limited to the managing underwriter(s) advise reasonable attorneys fees of one counsel selected by the Company that in its or their reasonable opinion the number of securities proposed to be included in such Purchaser, which shall not exceed $1,000 per effective registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and statement.
(ii) the Company will be obligated and required to 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 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 requested pursuant to this Section 9(a) will not be deemed to have been effected as unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration 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 theretobecome effective; provided, however, that if, within 180 days after it has become effective, (i) the offering of the Purchased Securities pursuant to such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Securities and Exchange Commission (the "SEC") or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 effected.
(iiiii) of the proviso to Section 4.2(a). If (i) a requested registration requested pursuant to this Section 4.2 is deemed not 9(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of securities requested to be included in such registration exceeds the number which can be reasonably sold in such offering, the Company will include in such registration first, securities offered by the Company, second, the Purchased Securities which have been effected as a Demand Registration or (ii) the registration requested to be registered pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement 9(a), third, an amount of securities of the distribution by Company which the Holders 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 Registrable Securities covered Company held by all other security holders which, in the good faith opinion of such registrationmanaging underwriter, then can be sold without causing a material adverse effect on the offering.
(iv) The Company shall continue to be obligated to effect a Demand Registration register Purchased Securities pursuant to this Section 4.2 9(a) only once provided that if the number of Purchased Securities requested by the Purchaser to be included in a Registration Statement requested by the Purchaser pursuant to Section 9 (a) is cut back, the Purchaser shall have the right, no earlier than one year following effectiveness of the Registrable first demand registration, to request a second Registration Statement to register the Purchased Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)so registered.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nam Corp), Stock Purchase Agreement (Insurance Services Office Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after six (6) month anniversary of the Closing Date (as defined in the Merger Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use commercially reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a4.1(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 Public Offering”). In such case, (i) the Company Holders of a majority of the shares of Registrable Stock to be sold in the Underwritten Offering 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 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 4.9 5.8 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the of Company on its own behalf or on behalf of the Holderssecurities.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the 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 only that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum NumberNumber prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities to shall be allocated pro rata among the Holders thereof on the basis of the 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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(a4.1(a). If (i) a registration requested pursuant to this Section 4.2 4.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 4.1 does not remain continuously effective until the earlier of forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationregistration or the completion of such distribution, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 4.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d4.1(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a).
Appears in 2 contracts
Sources: Stockholders Agreement (AV Homes, Inc.), Securities Purchase Agreement (AV Homes, Inc.)
Demand Registration. (a) Subject to The Company agrees that at the provisions hereofCompany's sole expense, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Company shall, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying no later than thirty (30) days following a written demand from the number Warrant Holder or the holder of Registrable Securities Warrant Shares for registration, file on its behalf and on behalf of the Warrant Holder or the holder of Warrant Shares with respect to be included the Warrant Shares specified in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such demand a 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 (y) use reasonable best 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 Act; and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make 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) use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Holders will not be entitled to require the Commission as soon thereafter as reasonably practicable. The Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not shall be obligated to effect more than prepare, file and cause to become effective only one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities Statement pursuant to such Demand this Section 11(d) (which Registration may Statement shall be in the form of an underwritten public offering (an “Underwritten Offering”addition to any filed under Section 11(c)). 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 4.9 of this Agreement; 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 The registration 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted effected by the Company on its own behalf pursuant to Section 11(c) or on behalf of the Holders.
(cthis Section 11(d) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as even though a Demand Registration unless the Registration Statement relating with respect thereto has been declared become effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that (1) if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction injunction, or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt, or if for any court prevents or otherwise limits the sale of the Registrable Securities pursuant reason not attributable to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Warrant Holder or Holders pursuant with respect to the such Registration Statement, and has not thereafter become effective or (ii2) if, if the conditions to closing specified in the case of an Underwritten Offeringunderwriting agreement, the Company fails to provide Full Cooperationif any, then entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied or waived, other than by reason of clause (ii) a failure on the part of the proviso Warrant Holder with respect to such Registration Statement; provided, that this the Warrant Holder or the 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 4.2(a). If 5(a) shall have expired or become ineffective or (iB) a registration requested to the extent that sales may be reasonably made pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Rule 144 under the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after Securities Act b the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Warrant Holder.
Appears in 2 contracts
Sources: License Agreement (Cytogen Corp), License Agreement (Cytogen Corp)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Members (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make 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 Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) 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 ofhereof, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) 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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Members on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be 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 Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings LLC)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Members (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make 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 Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) 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 ofhereof, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) 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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Stockholders on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be 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 Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 If the Company shall be requested in writing by Holder to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any of the Registration Stock, the Company, subject to the Company (i) specifying the number of Registrable Securities to be included limitations set forth in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowsubsection 3(b), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As shall effect as soon as practicable after the receipt of such demandrequest, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best 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 Company has been all Registration Stock which Holder so requested requests to register; provided, however, that be registered.
(i) If Holder intends to distribute the Holders Registration Stock covered by its request by means of an underwriting, it shall not make 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 so advise 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 as a part of the Registrable Securities its request made pursuant to such Demand Registration may this subsection 3(a). The managing underwriter will be in selected by Holder and shall be reasonably acceptable to the form of an underwritten public offering (an “Underwritten Offering”)Company. In such caseevent, (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 Holder shall (together with the Holders proposing to distribute their securities through such underwritingCompany as provided in subsection 4(e)) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(sunderwriter or underwriters selected for such underwriting.
(ii) proposing to distribute their securities through such Underwritten OfferingNotwithstanding the foregoing, which underwriting agreement shall have indemnification provisions the Company may include in substantially a registration requested under this subsection 3(a) any additional authorized shares of the form as set forth in Section 4.9 of this AgreementCommon Stock, whether or not issued, for sale by the Company or for sale by others; provided, however, that such shares shall not be included to the extent that the managing underwriter chosen in accordance with subsection (i) above concludes in good faith that the representations and warranties byinclusion of such shares will interfere with the successful marketing of the shares of Registration Stock to be included therein.
(iii) Notwithstanding the foregoing, if the Company shall furnish to Holder a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be detrimental for such registration statement to 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 other agreements on Company to defer the part offiling of such registration statement (or the intended sale of Registration Stock pursuant to a then effective registration statement), the Company shall have the right to and for the benefit of the underwriter(s) shall also be made defer taking action with respect 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 tosuch filing, or agreements withrequire Holder to refrain from selling Registration Stock, any underwriter in as the case may be, for a registration other period of not more than customary representations, warranties and agreements and one hundred twenty (iii120) 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 days.
(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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect effect, or participate to take any action to effect, any registration pursuant to this Section 3:
(ai) more than two (2) Underwritten Offerings After the Company has effected one registration pursuant to this Section 3 in any the previous twelve (12) month period, months and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and has been declared or ordered effective; or
(ii) During the Company will be obligated and required period beginning on a date thirty (30) days prior to 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 Company's good faith estimate of the number date 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 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 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationfiling of, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, ending on a date one hundred eighty (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45180) days after the commencement effective date of, a registration of Common Stock or other securities of the distribution by Company under the Holders Act in connection with a public offering of such securities (other than a registration relating solely to the sale of securities to participants in a stock option or other employee benefits plan of the Registrable Securities covered by such registration, then Company); provided that the Company shall continue is actively employing in good faith reasonable efforts to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that cause such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso statement to Section 4.2(a)become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Securicor Telesciences Inc), Registration Rights Agreement (Axiom Inc)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be 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 (y) use reasonable its best efforts to effect cause such registration statement to become effective (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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration 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 theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that 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 registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 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 requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationunreasonably withheld. In circumstances not including the events described in event there is one or more co-managers, the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities first such co-manager shall be 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 Demand Registrationselected by Vail, provided that such registration nonetheless co-manager shall count as a Demand Registration for purposes of clause (ii) be subject to the approval of the proviso to Section 4.2(a)Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Requesting Shareholder.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc /Mo), Shareholder Agreement (Ralcorp Holdings Inc /Mo)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after following the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the of this Agreement and upon written notice from a Holder or Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act at least twenty percent (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 regulations20%) of the Registrable Securities that the Company has been so requested (without giving effect to register; provided, however, that (iany limitation on exercise or conversion) the Holders shall not make 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 manner set forth in Section 11(h) hereof requesting that Company effect the registration under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in Securities Act of any six (6) month period.
(b) The offering or all of the Registrable Securities pursuant held by such Holder as described in Section 2(b) (which notice shall specify the intended method or methods of disposition of such Registrable Securities), Company shall use its reasonable best efforts to such Demand Registration may be effect, 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 manner set forth in Section 4.9 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; provided that:
(i) 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 good faith business judgment of Company’s underwriter (or outside advisors, if no underwriter), a registration at the time and on the terms requested could materially and adversely affect or interfere with such financing plan of Company or its subsidiaries (a “Transaction Blackout”), Company shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) sixty (60) days after the termination of such offering; provided that Company shall only be permitted to delay a requested registration under this Section 2(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 pending 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; providedor (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 may be, and (B) thirty (30) days after Company makes such good-faith determination; provided that Company shall only be permitted to delay a requested registration under this Section 2(a), whether in reliance on this subsection (ii) or on subsection (i) above, twice during the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit term 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 this Agreement.
(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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) file more than two (2) Underwritten Offerings registration statements under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any twelve (12) month period, and (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 securities proposed to be included in event if such a registration exceeds the 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 only that request is for a number of Registrable Securities requested by the Holders thereof to which have an aggregate market value less than $1 million. If such a request shall be included in such registration that does not exceed such Underwriters’ Maximum Numberfor an underwritten offering, such Registrable Securities to a request must be allocated pro rata among the Holders thereof on the basis of the for a number of Registrable Securities requested to be included therein by each such Holder. No shares which have an aggregate market value 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 Securitiesat least $5 million.
(db) A Notwithstanding any other provision of this Agreement to the contrary, a registration will requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the SECrequesting Holder based upon material adverse information relating to Company that is (x) different from the information known to the Holder or Holders requesting registration at the time of their request for registration, or (y) promptly disclosed by Company to the Holder at least 75% the time of their request for registration; (B) if, when effective, it includes fewer than ninety (90%) percent of the number of shares of Registrable Securities requested to be included in which were the registration by subject matter of the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequest; provided, however, that if, (C) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, less than ninety (90%) percent of the Registrable Securities requested to be registered can be completely distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Company shall have the right to designate the underwriter or underwriters, including the lead managing underwriter of such underwritten offering, subject to the reasonable approval of the Holders.
(d) Holders other than the Holder initiating the demand pursuant to Section 2(a) and holders of other registrable securities with the right to participate in a Company registration statement shall have the right to include their shares of Registrable Securities or other registrable securities, as the case may be, in any registration pursuant to Section 2(a). In connection with those registrations in which multiple Holders or holders of other registrable securities with the right to participate in such registration (“Piggy-back Rights Holders”) participate, in the event the facilitating broker/dealer or, in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the number of shares to be sold, the number of shares to be included in the sale or underwriting and registration shall be allocated pro rata among the Holders and the holders seeking registration pursuant to piggy-back registration rights otherwise granted by Company on the basis of the estimated proceeds from the sale of the securities covered by such registration.
(e) Company shall have the right to cause the registration of additional securities for sale for the account of Company in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a) which involves an underwritten offering; provided that Company shall not have the right to cause the registration of such additional securities if any court prevents or otherwise limits such Holder is advised in writing (with a copy to Company) by the lead managing underwriter designated pursuant to Section 2(c) that, in such firm’s good faith opinion, registration of such securities in addition to those securities included pursuant to Sections 2(a)-(d) hereof would materially adversely affect the offering and sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered contemplated by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (RS Properties I LLC), Registration Rights Agreement (Sands Brothers Venture Capital Ii LLLC)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders The Rightholders of a majority of all Registrable Securities Securities, voting as a single class, shall have the right right, exercisable by giving written notice to the Company, to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement 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”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, ; provided that the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be obligated to effect such a registration pursuant to this Section 2.1(a) (including, without limitation, appropriate qualification under applicable blue sky other than a registration on Form S-3 or other state securities laws any successor form from and appropriate compliance with applicable regulations issued under after the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that time the Company has been so requested is eligible to register; provideduse Form S-3 or any successor form, howeveras applicable, that (i) as to which the Holders Rightholders shall not make 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 have unlimited rights to require the Company to effect a registration) on more than three (3) Demand Registrations in occasions. In the aggregate under this Agreementevent of such a demand, and (iii) the Company will not be obligated to effect more than one shall, within twenty (120) Demand Registration in any six (6) month period.
(b) The offering days of the Registrable Securities pursuant receipt thereof, give written notice of such request to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”)all other Rightholders. In the event that any 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 Rightholders wish to participate in the Underwritten Offeringregistration (the “Opt-in Shareholders”), subject they shall so advise the Company within twenty (20) days of receipt of such notice and shall 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 underwritten, 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 CompanyRightholders 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 or delayed and (ii) withheld. In the event the Company shall has not selected an underwriter approved by such Rightholders within thirty (together with 30) days of 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 ofRightholders’ notice, the Company to and for the benefit Rightholders holding a majority of the underwriter(s) shall also Common Shares held by Rightholders to be made to and offered 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 sale pursuant 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 Demand Registration may select 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. 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 terms of such underwriting agreementunderwriter. The Company shall not be obligated deemed to effect or participate (ahave effected a Demand Registration pursuant to this Section 2.1(a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by unless 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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company Rightholders 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 only have sold 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 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 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, representing at least 75% fifty percent (50%) of the Registrable Securities requested to be included registered by the Rightholders.
(b) The Company may postpone for up to 120 days the filing or effectiveness of a registration statement with respect to a Demand Registration if the Company furnishes to Rightholders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that, in the good faith judgment of the Company’s Board of Directors, it would be materially detrimental to the Company and its stockholders for such registration by statement to be filed during the Holders are included period of such postponement for one or more of the following reasons: (i) the filing of such registration statement during such period would materially interfere with an acquisition, corporate reorganization or other transaction that the Company would disclose in a periodic report filed pursuant to the Securities Exchange Act; (ii) the filing of such registrationregistration statement during such period would require disclosure of material, and non-public information relating to the Company which the Company has complied a bona fide business purpose for preserving as confidential; or (iii) the filing of such registration statement during such period would result in all material respects the Company’s inability to comply with its obligations under this Agreement with respect theretoapplicable requirements of the Securities Act; and it is therefore necessary to defer the filing of such registration statement for such period; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution Company may not invoke this right more than once in any 12-month period. In the event of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringpostponement, the Company fails Rightholders shall be entitled to provide Full Cooperationwithdraw such request and if withdrawn, then such registration will Demand Registration shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) Subject For a period of 270 days (plus any additional days during which a registration has been postponed pursuant to the provisions Section 2.1(f) hereof, at any time on or ) from and after the date that is 180 days after one (1) year from the Closing Date (as defined in the Merger date of this Agreement), the Holders of a majority of Registrable Securities Holder shall be entitled to have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act effect one (a “Demand Registration”1) by delivering a written request therefor demand registration on Form S-3 (to the Company (i) specifying extent available to the number of Registrable Securities to Company, or any applicable substitute, replacement or successor form that may be included in such registration adopted by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 regulationsSEC) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a then owned of record and beneficially by such Holder. A request for such demand registration (a Demand "Registration under this Section 4.2(aRequest") for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) must be made in writing by 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 periodHolder.
(b) The offering of Company shall use its best efforts to cause the Registrable Securities pursuant to such Demand Registration may be specified in the form of an underwritten public offering Registration Request to be registered as soon as reasonably practicable so as to permit the sale thereof and, in connection therewith, shall, within thirty (an “Underwritten Offering”). In such case, (i30) days after the Holder provides the Company may designate the managing underwriter(s) of the Underwritten Offeringwith such notice, provided that such Holders may designate prepare and file 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 registration statement 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 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. 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 SEC under the terms of such underwriting agreement. The Company shall not be obligated Securities Act to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 Holderssuch registration.
(c) IfSuch 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, in if there is no managing underwriter, as deemed under the Securities Act to be necessary by the Company.
(d) In connection with an Underwritten Offeringthe preparation of the registration statement, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then Holder shall:
(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 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 Specify the number of Registrable Securities requested intended to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held offered and sold by the Holders shall be included in a Demand Registration without Holder;
(ii) Express the prior written consent Holder's intention to offer or cause the offering of such shares for distribution;
(iii) Describe the nature or method of the holders of a majority 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 interest order to permit the Company to comply with all applicable requirements of the Registrable SecuritiesSEC and to obtain any desired acceleration of the effective date of such registration statement.
(de) A registration will not be deemed Notwithstanding the foregoing, if the Company shall furnish to have been effected as the Holder a Demand Registration unless the Registration Statement relating thereto has been declared effective certificate signed by the SEC, at least 75% a duly authorized officer of the Registrable Securities requested 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 included in filed on or before the registration by the Holders are included in date such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will filing would be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationrequired, then the Company shall continue be entitled to be obligated to effect a Demand Registration pursuant to this Section 4.2 postpone the filing of the Registrable Securities included registration statement for up to ninety (90) days; provided, that no period of postponement shall be counted in tolling the 270-day period referred to in Section 2.1(a) above.
(f) If a registration has become effective but is withdrawn before completion of the offering contemplated thereby because of adverse business developments at the Company that were not known to the Holder when it requested that the Company initiate such registration. In circumstances registration proceedings, or which developments came into existence subsequent to such request, such registration shall not including count as the events described demand registration referred to in the immediately two preceding sentences first sentence of this Section 4.2(d), each 2.1.
(g) If a registration is filed on behalf of the Holder and such registration is withdrawn at the request of Registrable Securities shall be permitted voluntarily to withdraw all or the Holder for any part of its Registrable Securities from a Demand Registration reason other than adverse business developments at any time prior the Company that were not known to the commencement of marketing of such Demand RegistrationHolder, provided that such registration nonetheless shall count as the demand registration referred to in the first sentence of this Section 2.1.
(h) The Company shall not cause the registration under the Securities Act of any other shares of Common Stock to become effective (other than the registration of an employee stock plan, or registration in connection with any Rule 145 or similar transaction) during the effectiveness of a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)registration requested hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Electronic Game Card Inc)
Demand Registration. (a) Subject to the provisions hereoflimitations provided herein, at any time on after an initial public offering of the Common Stock, upon the written request (specifying that it is being made pursuant to this Section 2.1) of either (i) one or after more Holders of Stratford Registrable Securities representing 50% or more of the date Stratford Registrable Securities at the time outstanding, or (ii) one or more Holders of Preferred Investors Registrable Securities representing 50% or more of the Preferred Investors Registrable Securities at the time outstanding, requesting that the Company effect the registration under the Securities Act of all or part of such Holders' Registrable Securities and the other Registrable Securities of the same class of Registrable Securities (i.e., Stratford Registrable Securities or Preferred Investors Registrable Securities) (collectively, the "Requested Registrable Securities"), and specifying (x) the intended method of disposition thereof, (y) whether or not such requested registration is 180 to be an underwritten offering, and (z) the price range (net of underwriting discount and commissions) acceptable to such Holder or Holders to be received for such Requested Registrable Securities, the Company will within ten (10) business days after the Closing Date Company receives such written request give written notice of such requested registration to all other Holders of Registrable Securities and thereupon the Company will use reasonable efforts to effect an effective registration under the Securities Act of:
(as defined i) the Registrable Securities which the Company has been so requested to register by such Holders; and
(ii) all other Registrable Securities which the Company has been requested to register by the other Holders thereof 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 same information called for by the original request to effect registration described above), all to the extent requisite to permit the disposition (in accordance with Section 2.1(b) hereof) of the Registrable Securities so to be registered. Notwithstanding the foregoing, DFW shall have the ability to exercise its registration rights pursuant to this Section 2.1 at any time whether or not the Company has consummated an initial public offering of its Common Stock. If the Company is required to effect a registration pursuant to this Section 2.1 and the Company furnishes to the Holders of Registrable Securities requesting such registration a certificate signed by the President of the Company stating that in the Merger Agreement)good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed on or before the date such filing would otherwise be required hereunder and it is therefore necessary to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request for such registration from the Holder or Holders of Requested Registrable Securities requesting such registration; provided that during such time the Company may not file a registration statement for securities to be issued and sold for its own account or that of anyone other than the Holder or Holders of Requested Registrable Securities.
(b) The Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Requested Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether statement shall determine the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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) distribution of the Registrable Securities that the Company has been so requested to registerincluded; provided, however, that (i) the if no agreement of Holders shall not make 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 majority 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Requested Registrable Securities to be included in such Underwritten Offering and registration statement is obtained, then if Holders of thirty percent (ii30%) of the Company will be obligated and required to include in such Underwritten Offering only that number of Requested Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed statement request an underwritten public offering, an underwritten public offering shall be the method of distribution with other methods permitted to the extent the managing underwriter for such Underwriters’ Maximum Numberoffering, in its sole discretion, agrees to other methods of distribution being covered by such registration statement.
(c) Whenever the Company shall effect a registration pursuant to this Section 2.1 in connection with an underwritten offering, no securities other than Requested Registrable Securities shall be included among the securities covered by such registration unless the managing underwriter of such offering shall have advised each Holder of Requested Registrable Securities to be allocated pro rata among covered by such registration in writing that the Holders thereof on the basis inclusion of the 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 Securitiessecurities would not adversely affect such offering.
(d) Registrations under this Section 2.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company and as shall be reasonably acceptable to the Holders of a majority of the Requested Registrable Securities to be registered, and (ii) as shall permit the disposition of such Registrable Securities in accordance with the method or methods of disposition selected pursuant to Section 2.1(b).
(e) Except as otherwise provided in this Section 2.1 or in Section 2.2, all expenses incurred in connection with each registration requested pursuant to Section 2.1 and each registration requested pursuant to Section 2.2 (excluding in each case underwriter's discounts and commissions applicable to Registrable Securities), including, without limitation, in each case, all registration, filing and National Association of Securities Dealer, Inc. fees; all fees and expenses of complying with securities or blue sky laws; all word processing, duplicating and printing expenses, messenger, delivery and shipping expenses; fees and disbursements of the accountants and counsel for the Company including the expenses of any special audits or "cold comfort" letters or opinions required by or incident to such registrations; and the reasonable fees and disbursements of one firm of counsel retained by Holders of such Requested Registrable Securities, premiums and other costs of policies of insurance against liabilities arising out of the public offering of the Registrable Securities, any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions, if any, shall be borne by the Company. In all cases, each Holder of Registrable Securities shall pay the underwriter's discounts and commissions applicable to the securities sold by such Holder.
(f) A registration will requested pursuant to this Section 2.1 shall not be deemed to have been effected as (i) unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared become effective by the SEC, at least 75% (unless a substantial cause of the failure of such registration statement to become effective shall be attributable to one or more Holders of Requested Registrable Securities whose Requested Registrable Securities were to have been included in such registration statement) and all Requested Registrable Securities originally requested to be included in the registration by the Holders are registered (prior to any underwriter cutbacks) have been included in such registrationregistration statement, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, (ii) if after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, or resulting in a failure to consummate the offering of Requested Registrable Securities offered thereby, (iii) if any court prevents or otherwise limits after a registration statement with respect thereto has become effective, the sale offering of Requested Registrable Securities offered thereby is not consummated due to factors beyond the control of the Holders of such Requested Registrable Securities, including without limitation in the context of a proposed firm commitment underwriting, the fact that the underwriters have advised the Holders of such Requested Registrable Securities pursuant that such Requested Registrable Securities cannot be sold at a net price equal to or above the registration, and in each case less than all net price anticipated at the time of filing of the preliminary prospectus or (iv) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (unless a substantial cause of such conditions to closing not being satisfied shall be attributable to one or more Holders of Requested Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, whose Requested Registrable Securities were included 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 statement).
(iig) of the proviso to Section 4.2(a). If (i) a requested registration requested pursuant to this Section 4.2 is deemed not 2.1 involves an underwritten offering, the underwriter or underwriters thereof shall be selected by the Company with the approval of the Holders of a majority of the Requested Registrable Securities to have been effected as be so registered.
(h) If a Demand Registration or (ii) the requested registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.1 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (45with a copy to each Person requesting registration) days after that, in its opinion, the commencement number of securities requested to be included in such registration exceeds the distribution by number which can be sold in such offering within a price range acceptable to the Holders of a majority or more of the Requested Registrable Securities requested to be included in such registration, then the Registrable Securities requested to be registered pursuant to this Section 2.1 shall be reduced to the number of Registrable Securities which the Company is so advised can be sold in (or during the time of) such offering by (i) first decreasing the other securities and Registrable Securities (other than Requested Registrable Securities) requested to be registered (pro rata among such Persons requesting such registration on the basis of the percentage of other securities held by such Persons immediately prior to the filing of the registration statement with respect to such registration), then (ii) by decreasing the securities the Company intends to issue and sell for its own account pursuant to the registration statement, and finally (iii) by decreasing the Requested Registrable Securities to be registered (pro rata among such Holders of Requested Registrable Securities on the basis of the percentage of Requested Registrable Securities held by such Persons immediately prior to the filing of the registration statement with respect to such registration). In connection with any registration as to which the provisions of this clause (h) apply, no securities other than Requested Registrable Securities shall be covered by such registration, then unless all Requested Registrable Securities requested to be included in such registration have actually been included.
(i) Notwithstanding the other provisions of this Section 2.1, the Company shall continue to not be obligated required by this Section 2.1 to effect a Demand Registration pursuant to more than one effective registration (other than Short Form Registrations) at the Company's expense requested by each of the Holders of the Stratford Registrable Securities and Preferred Investors Registrable Securities. The Company shall also be required by this Section 4.2 2.1, at the Company's expense, to effect an unlimited number of Short Form Registrations; provided, that, the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences to be registered thereon (A)(i) are expected to have an aggregate disposition price (before deductions for underwriting discounts and commissions) of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all at least $1,000,000 or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) constitute at least one percent (1%) of the proviso outstanding Common Stock and (B) the Company shall not have to Section 4.2(a)effect more than two Short Form Registrations during any one fiscal year.
Appears in 1 contract
Sources: Registration Rights Agreement (O2wireless Solutions Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 If the Company to file shall receive a Registration Statement registering for sale all written request by the DLJ Entities or part of their respective Registrable Securities Permitted Transferees (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Shareholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "Demand Registration") promptly notify all Holders from whom at least 5 days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the Other Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Selling Shareholders, then held by the Selling Shareholders; provided, however, that (i) the Holders shall not make 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, and
(ii) subject to the Holders will not be restrictions set forth in Section 5.02, all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any Other Shareholder entitled to require request the Company to effect more than three a Piggyback Registration (3as such term is defined in Section 5.02) Demand Registrations in pursuant to Section 5.02 (all such Shareholders, together with the aggregate under this AgreementSelling Shareholders, and (iiithe "Holders") has requested the Company will to register by written request received by the Company within 2 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than one (1) six Demand Registrations for the DLJ Entities; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of DLJMB exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand Registration would constitute the First Public Offering, or (y) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 2-day period referred 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 4.9 of this Agreement; provided, that (i5.01(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other 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 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 number of Registrable Securities requested to be included therein therein. The Selling Shareholders requesting a registration under Section 5.01(a) 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 each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without the prior written consent unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section 5.01 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section 5.01 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (y) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances registration statement has been sold thereunder, such registration statement shall not including be considered a Demand Registration, or (ii) if the events described Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than 66 2/3% of the immediately two preceding sentences Registrable Securities of this Section 4.2(d)the Selling Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, each Holder in its view, (i) the number of shares of Registrable Securities shall requested to be 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 Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the proviso 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 Section 4.2(a).the Maximum Offering Size:
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 If the Company to file shall receive a Registration Statement registering for sale all written request by the DLJ Entities or part of their respective Registrable Securities Permitted Transferees (any such requesting Person, a "Selling Stockholder") that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Stockholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "Demand Registration") promptly notify all Holders from whom at least 5 days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the Other Stockholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Selling Stockholders, then held by the Selling Stockholders; provided, however, that (i) the Holders shall not make 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, and
(ii) subject to the Holders will not be restrictions set forth in Section 3.04, all other Registrable Securities of the same type as that to which the request by the Selling Stockholders relates which any Other Stockholder entitled to require request the Company to effect more than three an Incidental Registration (3as such term is defined in Section 5.02) Demand Registrations in pursuant to Section 5.02 (all such Stockholders, together with the aggregate under this AgreementSelling Stockholders, and (iiithe "Holders") has requested the Company will to register by written request received by the Company within 2 days after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.1(d) hereof, the Company shall not be obligated to effect more than one (1) six Demand Registrations for the DLJ Entities; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock to be included in such Demand Registration, in the reasonable opinion of DLJMB exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand Registration would constitute the First Public Offering, or (y) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 2-day period referred 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 4.9 of this Agreement; provided, that (i5.1(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other 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 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 number of Registrable Securities requested to be included therein therein. The Selling Stockholders requesting a registration under this Section 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 each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without unless the prior written consent participating Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale and (y) less than 75% of the Registrable Securities pursuant to the registration, and included in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will statement has been sold thereunder, such registration statement shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as considered a Demand Registration or (ii) if the registration requested pursuant to this Maximum Offering Size (as defined below) is reduced in accordance with Section 4.2 does not remain continuously effective until forty-five (455.1(e) days after the commencement of the distribution by the Holders such that less than 66 2/3% of the Registrable Securities covered of the Selling Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Stockholders that, in its view, (i) the number of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the Registrable Securities owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, then in the Company shall continue priority listed below, up to the Maximum Offering Size:
(A) first, all Benchmark Securities requested to be obligated registered by the Selling Stockholder and by all other DLJ Entities and their Permitted Transferees (allocated, if necessary for the offering not to effect a exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of shares of Registrable Securities requested to be registered);
(B) second, all Registrable Securities (other than Benchmark Securities) requested to be included in such registration by all DLJ Entities and their Permitted Transferees and any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such DLJ Entities and their Permitted Transferees and such other Holders on the basis of the relative number of shares of Registrable Securities (excluding any Benchmark Securities) requested to be included in such registration); and
(C) third, any securities proposed to be registered by the Company.
(f) If, in connection with any Demand Registration pursuant to this Section 4.2 with respect to the Preferred Stock, any Selling Stockholder shall seek to transfer any Warrants together with shares of Preferred Stock, the Company shall at the request of any such Stockholder effect a registration of such Warrants to which the provisions of this Article 5 shall apply mutatis mutandis and a registration, pursuant to a shelf registration statement, so as to permit the resale of the Registrable Securities included in shares of Common Stock for which any Warrants so transferred may be exercisable. The Company shall maintain the effectiveness of any such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)shelf registration statement, each Holder of Registrable Securities shall be permitted voluntarily and take all actions necessary to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing permit resale of such Demand Registration, provided that such registration nonetheless shall count Common Stock as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)may be required by applicable state securities laws.
Appears in 1 contract
Sources: Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Demand Registration. (a) Subject to The Company shall, upon the provisions hereof, written demand of the Buyer at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority acquisition of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or HoldersSecurities, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued the "Demand Registration") under the Securities Act and any other governmental requirements or regulations) of the such number of Registrable Securities that held by the Buyer as shall be indicated in a written demand sent to the Company has been so requested to registerby the Buyer; provided, however, that the Company shall not be required to effect a Demand Registration if counsel for the Company reasonably acceptable to the Buyer shall deliver to the Buyer an opinion reasonably acceptable to counsel for the Buyer that, pursuant to Rule 144 under the Securities Act or otherwise, the Buyer can sell Registrable Securities proposed to be included in the Demand Registration without registration under the Act, without limitation as to the number of Registrable Securities that are proposed to be sold by the Buyer. The Company shall pay all expenses in connection with a Demand Registration. Upon receipt of the Buyer's written demand, the Company shall expeditiously (ibut in any event within 90 days) file a registration statement under the Act for the Registrable Securities and use its best efforts to have such registration statement declared effective as soon as practicable after the filing thereof; provided that (A) the Holders Company shall not make be required to cause any special audit to be undertaken in connection with any such registration and (B) the Company shall not be required to file any registration statement during any period of time (not exceeding 90 days) when (I) the Company is contemplating a request public offering of its securities and, in the judgment of the managing underwriter thereof (or the Company, if such offering is not underwritten) such filing would have a material adverse effect on the contemplated offering, (II) the Company is in possession of material information that it deems advisable not to disclose in a registration statement or (III) the Company is engaged in any program for the repurchase of voting securities of the Company. The Buyer shall have the right to select the underwriters 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 OfferingRegistration, subject to the approval of the Company, which approval shall will 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 Holderswithheld.
(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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Stock Purchase and Registration Rights Agreement (Group Technologies Corp)
Demand Registration. (a) Subject to The Company may include in a Demand ------------------- Registration Shares for the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders account of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering and Shares for sale all or part the account of their respective Registrable Securities under other holders thereof exercising contractual piggyback rights, on the Securities Act (a “Demand Registration”) by delivering a written request therefor to same terms and conditions as the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether therein for the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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) account of the Registrable Securities that the Company has been so requested to registerDemanding Holder(s); provided, however, that (i) if the Holders shall not make a request for a Demand Registration under this managing -------- Underwriter or Underwriters of any underwritten offering described in 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 2.1 have informed the Company to effect more than three (3) Demand Registrations in writing that it is their opinion that the aggregate under this Agreementtotal number of Shares which the Demanding Holder(s), 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 and any such other holders intend to include in such offering is such as to materially and adversely affect the success of such offering, then (x) the number of Shares to be offered for the account of such other holders shall not be unreasonably withheld or delayed reduced (to zero, if necessary), in the case of this clause (x) pro rata in proportion to the --- ---- respective number of Shares requested to be registered and (iiy) thereafter, if necessary, the number of Shares to be offered for the account of 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 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 (aif any) shall be limited reduced (to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementzero, any such preliminary prospectusif necessary), 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 extent necessary to reduce 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 total number of securities proposed Shares requested to be included in such registration offering to the number of Shares, if any, recommended by such managing Underwriters (and if the number of Shares to be offered for the account of each such Person has been reduced to zero, and the number of Shares requested to be registered by the Demanding Holder(s) exceeds the number of Shares recommended by such managing Underwriters’ Maximum Number, then (ithe number of Shares to be offered for the account of the Demanding Holder(s) shall be reduced to the Company shall so advise all Holders extent necessary to reduce the total number of Registrable Securities Shares requested to be included in such Underwritten Offering offering to the number of Shares, if any, recommended by such managing Underwriters, and in the case of a reduction where both Demand Registrations have been exercised, such reduction shall be pro rata in proportion to the respective number of Shares requested to be registered by the Demanding Holders), and (ii) if the Company will offering is not underwritten, no other party (other than Piggy-Back Holders and any other holders exercising contractual piggyback rights), including the Company, shall be obligated and required permitted to include in offer securities under any 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 Demand Registration unless a majority of the 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 Shares held by the Holders shall be included in a Demand Registration without the prior written Demanding Holder(s) consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 inclusion of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)shares therein.
Appears in 1 contract
Sources: Registration Rights Agreement (Mariner Post Acute Network Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after one (1) year anniversary of the Closing Date (as defined in the Merger Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a4.1(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 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 4.9 4.8 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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(a4.1(a). If (i) a registration requested pursuant to this Section 4.2 4.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 4.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 4.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).such
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereof, at At any time on or after commencing September 1, 1997 and expiring five (5) years from the date that is 180 days after the Closing Date (as defined in the Merger of this Subscription Agreement), the Holders of a majority of Registrable Securities undersigned shall have the right (which right is in addition to require the registration rights under Section VI(a) hereof), exercisable by written notice to the Company, to have the Company prepare and file with the Commission, on one occasion, a registration statement and such other documents, including a prospectus, as may be necessary in the opinion of counsel for the Company, in order to file a Registration Statement registering for sale all or part comply with the provisions of their respective Registrable Securities under the Securities Act (Act, so as to permit a “Demand Registration”) by delivering a written request therefor to public offering and sale of the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, Common Shares.
(ii) specifying whether If the intended method of disposition thereof is undersigned exercises its registration request, pursuant to an Underwritten Offering Section VI(b)(i) above, between September 1st and November 1st (as defined below), and (iiithe "Window Period") containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandany given year, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received costs and (y) use reasonable best efforts to effect filing fees incurred in connection with such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws the "Costs") shall be divided evenly between the undersigned and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerCompany; provided, however, that (i) the Holders Costs payable by the undersigned shall be capped at $25,000. If the undersigned exercises such registration request on a date outside of the Window Period, the Costs shall be divided evenly between the undersigned and the Company; provided, however, that the Costs payable by the undersigned shall be capped at $40,000. Costs shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price include any amounts payable to the undersigned's counsel, any transfer taxes or underwriting discounts, commissions or fees applicable to the Common Shares, which shall be payable solely by the undersigned. Notwithstanding the foregoing, if the registration statement to which the Costs are associated is, due solely to actions of less than $5,000,000the Company, (ii) not declared effective by the Holders will not be entitled to require Commission within six months from the date it is first filed with the Commission, then the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and shall pay all Costs associated with such registration statement.
(iii) In connection with any registration under Section VI(b) hereof, the Company will not be obligated covenants and agrees as follows:
a. The Company shall use its best efforts to effect more than one file a registration statement within sixty (160) Demand Registration in days of receipt of any six (6) month period.
(b) The offering demand therefor, except that if such demand is made during the Window Period, the Company shall use its best efforts to file a registration statement within 60 days of the Registrable Securities pursuant end of the Window Period, shall use its best efforts to have any registration statements declared effective at the earliest possible time, and shall furnish the undersigned such Demand Registration may number of prospectuses as shall reasonably be requested; provided, however, that the Company may, at any time, delay the filing or delay or suspend the effectiveness of such demand registration or, without suspending such effectiveness, instruct the undersigned not to sell any securities included in the form of an underwritten public offering (an “Underwritten Offering”). In such casedemand registration, (i) if the Company shall have determined upon the written advice of counsel (confirmation of which notice shall be provided to the undersigned in writing by such counsel) that the Company would be required to disclose any actions taken or proposed to be taken by the Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such actions, or (ii) if required by law, to update the prospectus relating to any such registration to include updated financial statements (a "Suspension Period") by providing the undersigned with written notice of such Suspension Period and the reasons therefor; and provided further, that the Suspension Periods, in the aggregate, do not exceed sixty (60) days. The Company shall provide such notice as soon as practicable and in any event prior to the commencement of such a Suspension Period. The obligations of the Company hereunder with respect to the Common Shares are expressly conditioned on the undersigned furnishing to the Company such appropriate information concerning the undersigned and the Common Shares as the Company may designate reasonably request.
b. The Company agrees that it will use its best efforts to maintain the managing underwriter(seffectiveness of any registration statement filed pursuant to Section VI(b) hereof for a period of 1 year from the Underwritten Offeringeffective date of such registration statement.
c. The Company will take all necessary action which may be required in qualifying or registering the Common Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the undersigned, 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect execute or participate file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(aiv) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by Neither the underwriter(s) in any prior underwritten offering conducted filing of a registration statement by the Company on its own behalf or on behalf pursuant to this Section VI(b) nor the making of any request for prospectuses by the Holdersundersigned shall impose upon the undersigned any obligation to sell the Common Shares.
(cv) IfThe undersigned, in connection with an Underwritten Offering, the managing underwriter(s) advise upon receipt of notice from the Company that in its an event has occurred which requires a post-effective amendment to a registration statement or their reasonable opinion the number of securities proposed a supplement to be a prospectus included in such registration exceeds the Underwriters’ Maximum Numbertherein, 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits promptly discontinue the sale of the Registrable Securities pursuant to Common Shares until the registrationundersigned receives a copy of a supplemented or amended prospectus from the Company, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then which the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in provide as soon as practicable after such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)notice.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date Date, any Avista Holder or PGS may request, in writing (as defined in the Merger Agreementa “Demand Request”), the Holders of a majority of Registrable Securities shall have the right to require that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of its or their respective Registrable Securities under the Securities Act Shares (a “Demand Registration”). Notwithstanding the foregoing, 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 include parties deemed “Requesting Holders” pursuant to Section 2.1(g) hereof) represent, in the aggregate, more than 25% of the total number of Registrable Shares held by delivering a written request therefor to all Avista Holders or PGS, as the Company case may be.
(ib) specifying Each Demand Request shall specify the number of Registrable Securities Shares proposed to be included in such registration by such Holder or Holders, (ii) specifying whether sold and the intended method of disposition thereof is pursuant to of the Registrable Shares (including an Underwritten Offering (as defined belowpursuant to Section 2.1(d) or a Shelf Registration pursuant to Section 2.1(f), and (iii) containing all information about such Holder required ). Subject to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandSection 2.1(h), the Company shall file the Demand Registration within 90 days after receiving a Demand Request (xthe “Required Filing Date”) promptly notify and shall use all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect cause the same to be declared effective by the SEC as promptly as practicable after 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 Company has been so requested to registerfiling; provided, however, that the Company shall not be required to effect (i) the Holders shall not make 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 four (34) 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 Requests made by 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 Avista 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 more than four (together with the Holders proposing 4) Demand Registrations pursuant 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 Demand Requests made by PGS, each pursuant 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 Agreement2.1(a); provided, further, that (iif 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) the representations and warranties by, and the other agreements on the part ofbelow, the Company applicable Holders shall each have the right, with respect to and for the benefit of the underwriter(s) shall also be made each such exclusion, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 Holdersrequest one additional Demand Registration.
(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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Shares 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 Holders pay all Registration Statement relating thereto has been declared effective by the SECExpenses, at least 75% of the Registrable Securities requested to be included as hereinafter defined, in the registration by the Holders are included in connection with such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution an offering of Registrable Securities thereunder Shares pursuant to a registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 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 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 underwriting arrangements; provided, however, that no such Person shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as to (A) such Person’s ownership of 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 obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Shares, and the liability of each such Person will be in proportion to the number of Registrable Shares included in such Demand Registration, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Shares pursuant to such registration.
(e) No securities to be sold for the account of 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 Underwritten Offering (a “Material Adverse Effect”). Furthermore, in the event the managing underwriter or underwriters shall 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 by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Shares of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company is so advised can be sold in such offering without a Material Adverse Effect and such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Shares owned by each such Requesting Holder.
(f) 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 “shelf offering” under the Securities Act to be made on a continuous basis pursuant to Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC (such offering, a “Shelf Offering”). 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 shall use its best efforts to keep such Shelf Offering continuously effective under the Securities Act until all Registrable Shares covered by such Shelf Offering have been sold or may be sold at one time pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or the affected PGS Holders, as the case may be.
(g) Upon receipt of any Demand Request (including a Demand Request pursuant to Section 2.1(i)), the Company shall 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 description of the proposed disposition of such Registrable Shares), who shall have the right, exercisable by written notice to the Company within 20 days of their receipt of the Company’s notice, to elect to include in such Demand Registration (including a Shelf Funded Repurchase pursuant to Section 2.1(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.
(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 (but would not be required if such registration statement were not filed), and the Board of Directors of the Company determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) prior to receiving the 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 activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) of the proviso preceding sentence, the proposed registration for the Company’s account is abandoned. In order to Section 4.2(a). If (i) defer the filing of a registration requested statement pursuant to this Section 4.2 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 effected as made for all purposes of this Agreement. The Company may defer the filing of a Demand Registration or (ii) the particular registration requested statement pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.1(h) only once.
(45i) days after the commencement In lieu of any of the distribution by 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 to be made on a continuous basis pursuant to Rule 415 on Form S-3 (the “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 Securities covered Shares held by such registrationRequesting Holder (the “Shelf Funded Repurchase”) at a price equal to the price at which the Company Shelf Shares were sold less any underwriting discounts and commissions. Subject to the terms of this Agreement, then the Company shall continue use its best efforts to keep such Company Shelf continuously effective under the Securities Act until all Registrable Shares included in the applicable Demand Request have been purchased by the Company or may be obligated to effect a Demand Registration sold at one time pursuant to this Section 4.2 of Rule 144 as determined by the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior counsel to the commencement of marketing of Company pursuant to a written opinion letter to such Demand Registrationeffect, addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or PGS, as the case may be. The Company will not be responsible for any fees or expenses incurred by the Avista Holders or PGS in connection with the Shelf Funded Repurchase other than as provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to in Section 4.2(a)2.7 hereto.
Appears in 1 contract
Demand Registration. (a) Subject to (i) HEI shall have the provisions hereofright, at any time on or after the date that is 180 days after the Closing Date (as defined not more than four occasions in the Merger Agreement)aggregate, and no more frequently than once during any six-month period, and (ii) the Holders of Minority Stockholders as a majority of Registrable Securities 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 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 a Demand shall be deemed to be a single Demand for all purposes hereof), and no more frequently than once during any six-month period, to require the Company to file a Registration Statement registering register for offer and sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”"Demand") all or a portion of the Registrable Securities held by delivering a written request therefor such Stockholders, subject to the restrictions set forth herein; provided that no Stockholders 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 and provided further that HEI shall exercise its Demands under subsection (i) specifying the number of Registrable Securities hereof prior to be included in such registration by such Holder or Holders, exercising any Demand as a Minority Stockholder under (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawhereof. As soon promptly as practicable after the receipt Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a "Demand Notice"), a copy of such demandwhich shall have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for offer and sale under the Securities Act Registrable Securities, subject to Section 4.1(b), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (yi) use all reasonable best efforts to effect 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 the 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, thereafter, (includingii) after the filing of an initial version of the Registration Statement, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued use reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act and any other governmental requirements or regulations) as promptly as practicable after the date of the Registrable Securities that the Company has been so requested to registerfiling of such Registration Statement; 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 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 Holders shall not make a request for a Demand Effective Time of such Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Statement and (ii) such time as all of such securities have been disposed of by 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 periodselling securityholders.
(b) The offering 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 Registrable Securities pursuant Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to such Demand Registration may be not disclose in the form of an underwritten public offering (an “Underwritten Offering”). In such caseRegistration Statement a planned or proposed financing, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringacquisition or other corporate transaction or other material information, 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 have determined in good faith that such disclosure is not in 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 best interests 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 to and for the benefit of the underwriter(s) its stockholders; provided that no one such postponement shall also be made to exceed 90 days in any six-month period 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 all 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) postponements shall not exceed 180 days 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. 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 terms of such underwriting agreementaggregate. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in advise the Demanding Stockholder of any twelve (12) month period, and (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 Holderssuch determination as promptly as practicable after such determination.
(c) If, in In connection with an Underwritten Offeringunderwritten offering, if the managing underwriter(s) underwriter or underwriters advise the Company that in its or their reasonable opinion the number of securities proposed Applicable Securities subject to a Demand exceeds the number which can be included sold in such registration exceeds the Underwriters’ Maximum Numberoffering, 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 only that Registration the number of Registrable Applicable Securities requested by that, in the Holders thereof to opinion of such managing underwriter or underwriters, can be included sold in such registration that does not exceed such Underwriters’ Maximum Numberoffering (provided that, such Registrable in the event of a joint Demand, the Applicable Securities to included shall be allocated pro rata among the Holders thereof Demanding Stockholders on the basis of the relative number of Registrable Applicable Securities each such Demanding Stockholder has requested to be included therein by each in 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 SecuritiesRegistration).
(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 registration will not 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 as a (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand Registration unless (A) pursuant to clause (i) of the Registration Statement relating preceding sentence after the Commission filing fee is paid with respect thereto has been declared effective by or (B) pursuant to clause (iv) of the SEC, preceding sentence in circumstances where at least 7550% of the Registrable 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 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 (iiRegistration) of the proviso Demanding Stockholders, and shall be reasonably acceptable to Section 4.2(a)the Company. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyAny additional co-five (45) days after the commencement of the distribution managing underwriters shall be selected by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereoflimitations provided herein, at any time on or after the effective date of the Company's first registration statement under the Securities Act, upon the written request (specifying that it is 180 being made pursuant to this Section 10.1) of one or more Holders of Restricted Securities representing 51% or more of the Restricted Securities at the time outstanding, requesting that the Company effect the registration under the Securities Act of all or part of such Holders' Registrable Securities, and specifying (x) the intended method of disposition thereof, (y) whether or not
(i) the Registrable Securities which the Company has been so requested to register by such Holders; and
(ii) all other Registrable Securities which the Company has been requested to register by the other Holders thereof by written request given to the Company within 30 days after the Closing Date giving of such written notice by the Company (as defined which request shall specify the same information called for by the original request to effect registration described above), all to the extent requisite to permit the disposition (in accordance with Section 10.1(b) hereof) of the Registrable Securities so to be registered. If the Company is required to effect a registration pursuant to this Section 10.1 and the Company furnishes to the Holders of Registrable Securities requesting such registration a certificate signed by the President of the Company stating that in the Merger Agreement)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 to be filed on or before the date such filing would otherwise be required hereunder and it is therefore necessary to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request for such registration from the Holder or Holders of Registrable Securities requesting such registration; provided that during such time the Company may not file a registration statement for securities to be issued and sold for its own account or that of anyone other than the Holder or Holders of Registrable Securities requesting such registration.
(b) The Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether statement shall determine the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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) distribution of the Registrable Securities that the Company has been so requested to registerincluded; provided, however, that (i) the if no agreement of Holders shall not make 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 majority 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement is obtained, then if Holders of thirty percent (ii30%) of the Company will be obligated and required to 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 statement request an underwritten public offering, an underwritten public offering shall be the method of distribution with other methods permitted to the extent the managing underwriter for such Underwriters’ Maximum Numberoffering, in its sole discretion, agrees to other methods of distribution being covered by such registration statement.
(c) Whenever the Company shall effect a registration pursuant to this Section 10.1 in connection with an underwritten offering, no securities other than Registrable Securities shall be included among the securities covered by such registration unless (i) the managing underwriter of such offering shall have advised each Holder of Registrable Securities to be allocated pro rata among covered by such registration in writing that the inclusion of such other securities would not adversely affect such offering or (ii) the Holders thereof on the basis of the 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 or more of all Registrable Securities to be covered by such registration shall have consented in interest writing to the inclusion of the Registrable Securitiessuch other securities.
(d) Registrations under this Section 10.1 shall be on such appropriate registration -52- 59 form of the Commission (i) as shall be selected by the Company and as shall be reasonably acceptable to the Holders of a majority or more of the Registrable Securities to be registered, and (ii) as shall permit the disposition of such Registrable Securities in accordance with the method or methods of disposition selected pursuant to Section 10.1(b).
(e) Except as otherwise provided in this Section 10.1 or in Section 10.2, all expenses incurred in connection with an effective registration pursuant to Section 10.1 and each registration pursuant to Section 10.2 (excluding in each case underwriter's discounts and commissions applicable to Registrable Securities), including, without limitation, in each case, all registration, filing and National Association of Securities Dealer fees; all fees and expenses of complying with securities or blue sky laws; all word processing, duplicating and printing expenses, messenger, delivery and shipping expenses; fees and disbursements of the accountants and counsel for the Company including the expenses of any special audits or "cold comfort" letters or opinions required by or incident to such registrations; and the reasonable fees and disbursements of one firm of counsel retained by the Holders of such Registrable Securities, premiums and other costs of policies of insurance against liabilities arising out of the public offering of the Registrable Securities, any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions, if any, shall be borne by the Company. In all cases, each Holder of Registrable Securities shall pay the underwriter's discounts and commissions applicable to the securities sold by such Holder.
(f) A registration will requested pursuant to this Section 10.1 shall not be deemed to have been effected as (i) unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared become effective by the SEC, at least 75% (unless a substantial cause of the failure of such registration statement to become effective shall be attributable to one or more Holders of Registrable Securities requested whose Restricted Securities were to be included in the registration by the Holders are have been included in such registrationregistration statement), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, (ii) if after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, resulting in a failure to consummate the offering of Registrable Securities offered thereby, (iii) if after a registration statement with respect thereto has become effective, the offering of Registrable Securities offered thereby is not consummated due to factors beyond the control of the Holders of such Registrable Securities, including without limitation in the context of a proposed firm commitment underwriting, the fact that the underwriters have advised the Holders of such Registrable Securities that such Registrable Securities cannot be sold at a net price equal to or above the net price anticipated at the time of filing of the preliminary prospectus or (iv) if any court prevents the conditions to closing specified in the purchase agreement or otherwise limits underwriting agreement entered into in connection with such registration are not satisfied (unless a substantial cause of such conditions to closing not being satisfied shall be attributable to one or more Holders of Registrable Securities whose Registrable Securities were included in such registration statement).
(g) If a requested registration pursuant to this Section 10.1 involves an underwritten offering, the sale underwriter or underwriters thereof shall be selected by the Company with the approval of the Holders of a majority or more of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or be so registered.
(iih) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such If a requested 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 registration requested pursuant to this Section 4.2 10.1 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (with a copy to each Person requesting registration) that, in its opinion, the number of securities requested to be included in such
(i) Notwithstanding the other provisions of this Section 10.1, the Company shall not be required by this Section 10.1 to effect more than one effective registration statement; provided, however, the Company shall be required by this Section 10.1 to effect, at the sole expense of the holders of Registrable Securities requesting registration (unless such registration is deemed not to have been effected as a Demand Registration or (ii) the demand registration requested exercised pursuant to the other provisions of this Section 4.2 does not remain continuously effective until forty-five 10.1 in which case the Company will bear the expenses of such registration in accordance with Section 10.1(e)), an unlimited number of registrations on Form S-3 (45) days after the commencement of the distribution by the Holders of or any successor similar form), provided that the Registrable Securities covered by such registration, then the Company shall continue to be obligated registered thereon are expected to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration have an aggregate disposition price (before deductions for purposes of clause (iiunderwriting discounts and commissions) of the proviso to Section 4.2(a)at least $500,000.
Appears in 1 contract
Sources: Subordinate Loan and Warrant Purchase Agreement (Edutrek Int Inc)
Demand Registration. (a) Subject to The Company may include in a Demand ------------------- Registration, Shares for the provisions hereofaccount of the Company, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have for the right to require account of the Company to file a Registration Statement registering Investor (which for sale purposes of this Agreement "account of the Investor" includes all or part Permitted Transferees) and Shares for the account of their respective Registrable Securities under other holders thereof exercising contractual piggyback rights, on the Securities Act (a “Demand Registration”) by delivering a written request therefor to same terms and conditions as the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether therein for the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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) account of the Registrable Securities that Investor and the Company has been so requested to registerPermitted Transferees; provided, however, that -------- (i) if the Holders shall not make a request for a Demand Registration under this managing Underwriter or Underwriters of any underwritten offering described in 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 2.1 have informed the Company to effect more than three (3) Demand Registrations in writing that it is their opinion that the aggregate under this Agreementtotal number of Shares which the Investor, 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 and any such other holders intend to include in such offering is such as to materially and adversely affect the success of such offering, then (x) the number of Shares to be offered for the account of such other holders shall not be unreasonably withheld or delayed reduced (to zero, if necessary), in the case of this clause (x) pro rata in --- ---- proportion to the respective number of Shares requested to be registered and (iiy) thereafter, if necessary, the number of Shares to be offered for the account of 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 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 (aif any) shall be limited reduced (to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementzero, any such preliminary prospectusif necessary), 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 extent necessary to reduce 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 total number of securities proposed Shares requested to be included in such registration offering to the number of Shares, if any, recommended by such managing Underwriters (and if the number of Shares to be offered for the account of each such Person has been reduced to zero, and the number of Shares requested to be registered by the Investor exceeds the number of Shares recommended by such managing Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders number of Registrable Securities Shares to be included in such Underwritten Offering offered for the account of the Investor and the Permitted Transferees shall be reduced) and (ii) if the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does offering is not exceed such Underwriters’ Maximum Numberunderwritten, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person no other party (other than Registrable Securities held by other holders exercising contractual piggyback rights), including the Holders Company, 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 will not be deemed permitted to have been effected as a offer securities under any such Demand Registration unless 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 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Investor consents to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 inclusion of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)shares therein.
Appears in 1 contract
Sources: Registration Rights Agreement (Mariner Post Acute Network Inc)
Demand Registration. Rights
(a) Subject to the provisions hereoflimitations 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 on and from time to time as long as the Intercap Shareholders, as a group, own, control or after the date that is 180 days after the Closing Date (as defined direct, directly or indirectly, in the Merger Agreementaggregate, 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 Registration Statements or prospectus supplements under any existing Registration Statement, if an 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 all or any portion of the 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 “Qualifying Shares”), the Holders of a majority of Registrable Securities shall have the right plus any other Shares to require the Company be included in such Distribution pursuant to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act Section 4.1(g) (a “Demand Registration”). The Company and the Intercap Demanding Shareholder shall cooperate in a timely manner in connection with such disposition and the procedures in Schedule A of this Agreement shall apply.
(b) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowNotwithstanding Section 4.1(a), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best efforts be obliged to effect such registration a Demand Registration:
(includingi) if, without limitationwithin any twelve-month period, 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 Company has been so requested already effected two (2) Demand Registrations pursuant to register; providedSection 4.1(a). For the purposes of this Subsection, however, that (i) the Holders a Demand Registration shall not make be considered as having been effected until (a) a receipt has been issued by, or deemed to be 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 which the Qualified Shares are to be Distributed. However, if an Intercap Demanding Shareholder withdraws or does not pursue a request for a Demand Registration under this Section 4.2(aafter (A) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, filing a preliminary prospectus pursuant to which the Qualifying Shares are to be Distributed or (iiB) 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 entering into 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 enforceable bought deal letter or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting or agency 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 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 Demand Registration (provided that at such time the Company that is in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied compliance in all material respects with its obligations under this Agreement Agreement), then such Demand Registration shall be deemed to be effected. (ii) within 90 days after the date of completion of a previous Demand Registration; (iii) during the period starting 14 calendar days prior to and ending upon the expiry of any black-out periods applicable to the Company, except as may be otherwise agreed by the Company and the 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 the United States (unless otherwise agreed among the Company, the underwriters managing such offering and the Intercap Demanding Shareholder); or (vi) in the event that the Board (with respect thereto; providedIntercap Directors abstaining) determines in its good faith judgement that there is a Valid Business Reason (as defined below) and that it is, howevertherefore, that if, after it has become effective, (i) such in the best interests of the Company to defer the filing of a Prospectus and/or a Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or prospectus supplement under any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the existing Registration Statement, or (ii) ifif applicable, at such time, in which case the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration Company’s obligations under this Section 4.1 will be deemed deferred for a period of not to have been effected for purposes more than 90 calendar days from the date of clause (ii) receipt of the proviso to Section 4.2(a)Demand Notice; provided that such right of deferral may not be exercised more than once in any one (1) year period. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) For the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences purposes of this Section 4.2(d4.1(b)(vi), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).“Valid
Appears in 1 contract
Sources: Side Letter to the Investor Rights Agreement (Docebo Inc.)
Demand Registration. (ai) Subject to the provisions hereof, at At any time on or after the date that is 180 and from time to time commencing one hundred and eighty (180) days after the Closing Date consummation of an Initial Public Offering upon written notice to the Corporation (as defined in a “Demand Notice”) delivered by a Qualified Holder or Qualified Holders requesting that the Merger Agreement), Corporation effect the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act registration (a “Demand Registration”) by delivering under the Securities Act (other than pursuant to a written request therefor to Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Company (iSecurities Act) specifying of any or all of the number of Registrable Securities to be included in such registration held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowQualified Holder(s), and the Corporation shall promptly (iiibut in any event, not later than five (5) containing all information about Business Days following the Corporation’s receipt of such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after Demand Notice) give written notice of the receipt of such demandDemand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Corporation shall use its commercially reasonable efforts to, within forty-five (45) days following the receipt of such Demand Notice (subject to compliance with any applicable covenants in any underwriting agreement for a previous registration effected under this Section 6(a) or under Section 6(b)), file the appropriate Registration Statement (the “Demand Registration Statement”) subject to Section 6(a)(ii) and use its commercially reasonable efforts to effect, at the earliest practicable date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best 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 under the applicable state securities laws of (A) the Registrable Securities which the Corporation has been so 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) that the Corporation has been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Corporation within twenty (20) days following the receipt of the Corporation’s written notice of the receipt of the Demand Notice and (C) any other governmental requirements or regulationsRegistrable Securities to be offered and sold by the Corporation, in each case subject to Section 6(a)(iv), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities that the Company has been to be so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under registered. Notwithstanding anything in this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0006 to the contrary, (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 Corporation shall not be obligated to (I) effect more than one (1) Demand Registration Registrations in any six (66)-month period, (II) month period.
(b) The offering of the Registrable Securities pursuant to such effect any Demand Registration may be in the form of an underwritten public offering within ninety (an “Underwritten Offering”). In such case, (i90) 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 4.9 of this Agreement; 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) days from the disposition date of the Registrable Securities disposed effectiveness 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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.
Statement or (dIII) A registration will not be deemed to have been effected as comply with a Demand Registration unless Notice to the Registration Statement relating thereto extent the Corporation has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has already complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, five (i5) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities Demand Notices pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)terms hereof.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver by the underwriters of the lock-up provisions in the Merger IPO Underwriting Agreement), the any Holder or Holders shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that in the aggregate equals or is greater than the Minimum Registration Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use its commercially reasonable best efforts to effect such the 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 regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Holder or Holders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering; providedand
(ii) all other Ordinary Shares that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, however, that but subject to Section 4.1(f).
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the Company will not be obligated to effect more than one identity of the Holder (1) Demand Registration in any six (6) month periodor Holders).
(bc) The offering Each Holder shall be entitled to an unlimited number of Demand Registrations until such time as the Holders, together, Beneficially Own less than the Minimum Registration 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 Holder whose shares represent a majority 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) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) 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 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” 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 which all of the Holders.
Holders were given the opportunity to exercise “piggyback” rights pursuant to Section 4.2 (csubject to Section 4.1(f) If, in connection with an Underwritten Offering, and provided that at least 50% of the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the 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 only that number of Registrable Securities requested by the such Holders thereof to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.1(a) and Section 4.3(f). In addition, the Company shall be entitled to postpone (upon written notice to all Holders) for a reasonable period of time not to exceed 45 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any twelve-month period) if the Board determines in good faith and in its reasonable judgment that does the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of (i) material, non-public information that the Company has a bona fide business purpose for preserving as confidential, (ii) a significant business opportunity (including a potential acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, share exchange, tender offer or other similar transaction) available to the Company which the Board reasonably determines to be significantly disadvantageous for the Company to disclose or (iii) any other event or condition of similar significance to the Company that the Board reasonably determines to be significantly disadvantageous for the Company to disclose and which the Company is not exceed otherwise required to disclose at such Underwriters’ Maximum Numbertime (each of the conditions in (i), (ii) and (iii), a “Disadvantageous Condition”), and the Company shall furnish to the Initial Shareholder a notice stating that the Company is deferring such registration pursuant to this Section 4.1(e) and an approximation of the anticipated duration of the delay. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration due to a Disadvantageous Condition, the Holder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of the Holders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Holders, which, in the opinion of the underwriter, can be sold without adversely affecting the marketability of the offering pro rata among such Holder. No shares Holders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person other than Registrable Securities held by such Holders; and (ii) second, securities 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 SecuritiesCompany proposes to sell.
(dg) A registration Any investment bank(s) that will not be deemed serve as an underwriter with respect to have been effected as a such Demand Registration unless the or, if such Demand 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 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, the Company fails to provide Full Cooperationany investment bank engaged in connection therewith, then such registration will shall be deemed not to have been effected for purposes selected by Holders holding a plurality of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the all Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Demand.
Appears in 1 contract
Sources: Shareholders Agreement (Hanson Building Products LTD)
Demand Registration. (a) Subject to Section 2(b) and Section 6, upon the provisions hereofexpiration of the Lock-up Period, at any time on or after the date certain Demanding Holders, as set forth below, may request 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 effect the registration of offers and sales related to file a Registration Statement registering for sale all or part of their respective Registrable Shares under the Securities Act, and upon such request the Company shall promptly use its reasonable best efforts to effect the registration under the Securities Act of such Registrable Shares (a “Demand Registration”) by delivering a written request therefor to the Company ). Each holder of Registrable Shares who is an Investor Shareholder (i) specifying holding (together with its Affiliates) greater than ten percent (10%) of the Company’s then-issued and outstanding Effective Shares shall have the right to request unlimited Demand Registrations and (ii) holding (together with its Affiliates) between five percent (5%) and ten percent (10%) of the Company’s then-issued and outstanding Effective Shares will be entitled to request two (2) Demand Registrations (collectively, the “Demanding Holders”). ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(b) Notwithstanding anything contained in this Section 2 to the contrary, the Company shall not be obligated to effect any registration under the Securities Act except in accordance with the following provisions:
(i) In no event shall the Company be required to effect in the aggregate more than four (4) Demand Registrations in any twelve (12) month period and no Demanding Holder may request more than two (2) Demand Registrations in any one hundred eighty (180)-day period; provided, however, if the Demanding Holders are unable to sell at least a majority of the Registrable Shares to be included in any registration pursuant to this Section 2 as a result of an underwriter’s cutback pursuant to Section 2(b)(iii), then such registration shall not be considered a requested Demand Registration by such Demanding Holder for purposes of Section 2(a) (although such registration shall be considered as a Demand Registration for purposes of the aggregate limitation set forth in this Section 2(b)(i), other than with respect to any Demanding Holder holding (together with its Affiliates) greater than ten percent (10%) of the Company’s then-issued and outstanding Effective Shares who, to the extent such Demanding Holder has not requested a Demand Registration for such twelve (12) month period, shall be entitled to one additional Demand Registration for such twelve (12) month period).
(ii) The Company may delay the filing or effectiveness of any registration statement for a period of up to ninety (90) days after the date of a request for a Demand Registration pursuant to Section 2(a) if at the time of such request: (X) the Company is engaged, or has fixed plans to engage within ninety (90) days of the time of such request, in a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares have been or will be permitted to include all the Registrable Shares so requested to be registered pursuant to Section 3, (Y) the Board reasonably determines that such registration and offering would interfere with any Material Transaction or (Z) within the last forty-five (45) days the Company has completed a firm commitment underwritten public offering of Primary Shares in which the holders of Registrable Shares have been permitted to include Registrable Shares.
(iii) With respect to any registration pursuant to this Section 2, (A) the Company shall give notice of such registration, in accordance with the provisions of Section 3 hereunder, to each holder of Registrable Shares and shall offer to and shall include in such proposed registration any Registrable Shares requested to be included in such proposed registration by each holder of Registrable Shares, provided that such holder responds in writing to the Company’s notice within ten (10) days after delivery by the Company of such notice (which response shall specify the number of Registrable Securities Shares such holder is requesting to include in such registration), and (B) the Company may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and/or Other Shares requested to be included in such registration by such Holder or Holders, would interfere with the successful marketing (iiincluding pricing) specifying whether of the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required Registrable Shares proposed to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandregistration, then, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts number of Registrable Shares, Primary Shares and/or Other Shares proposed to effect be included in such registration shall be included in the following order:
(includingA) first, without limitation, appropriate qualification under applicable blue sky the Investor Shares that are not subject to (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 in relation to which the Company has been so waived) any Subsequent Lock-up (or, if necessary, such Investor Shares pro rata among the holders thereof based upon the number of Investor Shares requested to registerbe registered by each such Investor Shareholder); ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(B) second, the Primary Shares;
(C) third, the Management Shares (or, if necessary, such Management Shares pro rata among the holders thereof based upon the number of Management Shares requested to be registered by each such holder); and
(D) fourth, the Other Shares; provided, however, that (i) at the Holders shall not make 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 election of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such caseCompany, (i) the Company any registration pursuant to this Section 2 may designate the managing underwriter(s) of the Underwritten Offeringbe converted into a registration pursuant to Section 3 (in which event, 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 registration shall not be unreasonably withheld or delayed and considered to be a requested Demand Registration by such Demanding Holder for purposes of Section 2(a) (ii) although such registration shall be considered as a Demand Registration for purposes of 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 aggregate limitations set forth in Section 4.9 of this Agreement; provided2(b)(i), that other than with respect to any Demanding Holder holding (itogether with its Affiliates) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit greater than ten percent (10%) of the underwriter(sCompany’s then-issued and outstanding Effective Shares who, to the extent such Demanding Holder has not requested a Demand Registration for such twelve (12) month period, shall also be made entitled to and one additional Demand Registration for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, such twelve (12) month period) or (ii) no Holder shall with the consent of the Demanding Holders, the Primary Shares may be required to make any representations and warranties to, or agreements with, any underwriter in set at the same priority level as the Registrable Shares thereby being cutback on 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 pro rata basis based upon an untrue statement or alleged untrue statement or omission or alleged omission made the number of Registrable Shares and Primary Shares requested to be included 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 registration statement by the holders of Registrable Shares and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and Company.
(biv) 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect any Demand Registration requested by any Demanding Holder if the anticipated gross offering price of all Registrable Shares to be included therein would be less than $10,000,000.
(v) If the holders of the Registrable Shares requesting to be included in a Demand Registration pursuant to Section 2(a) so elect, the offering of such Registrable Shares pursuant to such Demand Registration shall be in the form of an underwritten offering. The Company shall select one or participate more nationally recognized firms of investment bankers reasonably acceptable to the Majority Demanding Holders to act as the lead managing underwriter or underwriters in connection with such offering.
(avi) more At any time before the registration statement covering such Registrable Shares becomes effective, a Demanding Holder may request the Company to withdraw or to not file the registration statement for which it had previously requested a Demand Registration pursuant to Section 2(a). Upon delivery of a notice by a Demanding Holder to such effect, the Company shall cease all efforts to secure effectiveness of the applicable registration statement and such Demanding Holder shall be deemed to have used one of its Demand Registrations pursuant to Section 2(a), unless such request of withdrawal was caused by, or made in response to, (A) a material adverse effect or a similar event related to the business, properties, condition, ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT or operations of the Company not known (without imputing the knowledge of any other Person to such holders) by such Demanding Holder at the time its request was made, or other material facts not known to such Demanding Holder at the time its request was made, or (B) a material adverse change in the financial markets. In addition, any such withdrawn registration shall not be considered to be a requested Demand Registration by such Demanding Holder for purposes of Section 2(a) if the Company shall have been reimbursed (in the absence of any agreement to the contrary, pro rata by the Demanding Holders) for all out-of-pocket expenses incurred by the Company in connection with such withdrawn registration (although, notwithstanding any reimbursement, such withdrawn registration shall be considered as a Demand Registration for purposes of the aggregate limitations set forth in Section 2(b)(i), other than two with respect to any Demanding Holder holding (2together with its Affiliates) Underwritten Offerings in any greater than ten percent (10%) of the Company’s then-issued and outstanding Effective Shares who, to the extent such Demanding Holder has not requested a Demand Registration for such twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed entitled to have been effected as a Demand Registration unless 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 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a one additional Demand Registration for purposes of clause such twelve (ii12) of the proviso to Section 4.2(amonth period).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying Request for Registration. Upon the number written request of one or more Holders of not less than 20% of the Registrable Securities to be included in (calculated on an as-converted basis) (the "Requesting Holders") that the Company effect the registration of all or a part of such registration by such Holder or Holders, ' Registrable Securities (ii) specifying whether which request shall specify the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandRegistrable Securities) (a "Demand Registration"), the Company shall will:
(x1) promptly notify give written notice of the proposed registration to all Holders from whom the request for registration has not been received and other Holders; and
(y2) as soon as reasonably possible, use its reasonable best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act Act) as may be so requested and any other governmental requirements as would permit or regulationsfacilitate the sale and distribution (in accordance with the intended methods as aforesaid) of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request received by the Company within 15 days after written notice from the Company is given under Section 2(a)(i)(1) above; provided that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under be obligated to effect, or take any action to effect, any such registration pursuant to this Section 4.2(a2(a):
(A) for Registrable Securities having an If such registration is prohibited by applicable law;
(B) For a period of 30 days before the anticipated aggregate consummation of a public offering price of less than $5,000,000, (ii) the Holders will not be entitled to require by the Company of its equity securities and 90 days subsequent to effect more than the consummation of such public offering;
(C) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(D) After the Company has effected three (3) Demand Registrations in pursuant to this Section 2(a) and such registrations have been declared or ordered effective and 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.sales of such Registrable Securities shall have closed;
(bE) The offering If the Registrable Securities requested by all Holders to be registered pursuant to such request do not constitute at least 20% of the Registrable Securities (calculated on an as-converted basis);
(F) Within 90 days after the effective date of a previous Demand Registration or a previous registration under which the Requesting Holders had piggyback rights pursuant to such Demand Registration may be in Section 2(b) hereof wherein 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 Requesting Holders may designate a co-managing underwriter were permitted 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 4.9 of this Agreement; provided, that (i) the representations and warranties byregister, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECsold, at least 7550% of the Registrable Securities requested to be included therein;
(G) If the Company shall furnish to the Requesting Holders a certificate signed by the President of the Company stating that in the registration by good faith judgment of the Holders are included Board of Directors it would be in such registration, and the best interests of the Company has complied in all to defer such Demand Registration because such registration would jeopardize any other material respects with its obligations under this Agreement with respect theretocorporate transaction of the Company or would require the disclosure of material non-public information, then the Company shall have the right to defer filing a registration statement for such Demand Registration for a period not to exceed sixty (60) days from the date of receipt of written request from the Requesting Holders; provided, however, that ifthe Company shall not exercise such right more than once in any (12) twelve-month period. The registration rights set forth in this Section 2 may be assigned, after it has become effectivein whole or in part, (i) such Registration Statement or the related offer, sale or distribution to any transferee of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than (who shall be bound by all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences obligations of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aAgreement).
Appears in 1 contract
Demand Registration. (a) Subject to If the provisions hereofIssuer shall receive a written request by the DLJ Entities, at any time Chase, Summit on behalf of the Summit-Investors or after the date that is 180 days after the Closing Date Wind▇ ▇▇▇▇ ▇▇▇estors (as defined provided in Section 5.13) (any such requesting Person, a "SELLING SHAREHOLDER") that the Merger Agreement), Issuer effect the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Shareholder's shares of Common Stock, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, following the earlier to occur of (i) October 5, 1999 or (ii) an Underwritten Offering (as defined below)Initial Public Offering, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after then the receipt Issuer shall promptly give written notice of such demand, requested registration (a "DEMAND REGISTRATION") at least 30 days prior to the Company shall (x) promptly notify all Holders from whom anticipated filing date of the request for registration has not been received statement relating to such Demand Registration to the other Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 of:
(A) the Registrable Securities which the Issuer has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and (B) subject to the cut back provisions set forth in Section 5.2, all other Registrable Securities of the same type (it being understood that voting and non-voting common stock will be considered the same type) as that to which the request by the Selling Shareholders relates which any other governmental requirements or regulationsShareholder entitled to request the Issuer to effect an Incidental Registration (as such term is defined in Section 5.2) pursuant to Section 5.2 (all such Shareholders, together with the Selling Shareholders, the "HOLDERS") has requested the Issuer to register by written request received by the Issuer within 15 days after the receipt by such Holders of such written notice given by the Issuer, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; providedprovided that, however, that (isubject to Section 5.1(c) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000hereof, (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 (iiiI) the Company will shall not be obligated to effect more than one three Demand Registrations for the Summit-Investors collectively, three Demand Registrations for the DLJ Entities collectively, three Demand Registrations for the Wind▇ ▇▇▇▇ ▇▇▇estors collectively, or three Demand Registrations for Chase pursuant to this Section 5.1, and (1II) in addition to the foregoing rights, following the Short-Form Date, the number of Short-Form Demand Registrations for the DLJ Entities, Chase, the Summit-Investors and the Wind▇ ▇▇▇▇ ▇▇▇estors pursuant to this Section 5.1 shall be unlimited; and provided further that the Issuer shall not be obligated to effect a Demand Registration with respect to Common Stock unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration equal at least (x) if such Demand Registration would constitute an Initial Public Offering, $50,000,000, or (y) in any six (6) other Public Offering, $20,000,000. In no event will the Issuer be required to effect more than one Demand Registration within any 6 month period.
(b) The offering of the Registrable Securities pursuant to such Issuer will pay all Registration Expenses in connection with any 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 HoldersRegistration.
(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 securities proposed to be included in such registration exceeds the 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 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 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 will requested pursuant to this Section 5.1 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section 5.1 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale and (y) less than 75% of the Registrable Securities pursuant to the registration, and included in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will statement has been sold thereunder, such registration statement shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as considered a Demand Registration or (ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(d) such that less than 66 2/3% of the Registrable Securities of the Selling Shareholders sought to be included in such registration are included.
(d) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Issuer and the Selling Shareholders that, in its view, (i) the number of shares of Common Stock or Warrants requested to be included in such registration (including Common Stock or Warrants which the Issuer proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Common Stock or Warrants 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 Issuer will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by any Selling Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Selling Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration); (B) second, all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and (C) third, any Common Stock proposed to be registered by the Issuer.
(e) Upon written notice to each Selling Shareholder, the Issuer may postpone effecting a registration pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement 5.1 on one occasion during any period of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect six consecutive months for a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described reasonable time specified in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause notice but not exceeding 90 days (ii) of the proviso to Section 4.2(a).which
Appears in 1 contract
Sources: Investors' Agreement (Doane Pet Care Enterprises Inc)
Demand Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then 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 “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger terms of this Agreement), the Holders of a majority of Registrable Securities Company shall have the right use its reasonable best efforts to require the Company to file cause a Registration Statement registering for sale all or part of their respective Registrable Securities 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 (a “Demand Registration”i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to 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 delivering a written request therefor the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (ithe “Effectiveness Period”). The Company shall notify the Holders via e-mail of the effectiveness of a Registration Statement as promptly as practicable, and shall, if requested, provide the Holders with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.
(b) specifying Notwithstanding the registration obligations set forth in Section 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, 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 Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission to maximize the number of Registrable Securities to be registered), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) First, the Company shall reduce or eliminate any securities to be included in such registration by such Holder or Holders, other than Registrable Securities; and
(ii) specifying whether Second, the intended method Company 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 disposition thereof is pursuant unregistered Warrant 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 an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in 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 file with the 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 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.
(d) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Lead Investors the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause as of 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 is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement or (iv) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the 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 penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. As soon as practicable 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 in full within seven Trading Days after the receipt date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted 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 Purchase Agreement, no liquidated damages shall be payable (i) 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 written opinion letter to such effect, addressed and reasonably acceptable to the Holder and the Company’s transfer agent, if any, (ii) to a Holder with respect to an Event caused by any action of such demandHolder or failure of such Holder to take any action that such ▇▇▇▇▇▇ is required to take hereunder, or (iii) to a Holder in the 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 of the resale of Registrable Securities hereunder, the Company shall (xi) promptly notify all Holders from whom register the request for registration has not been received and (y) use reasonable best 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) resale of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 on another appropriate 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) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall (together with maintain 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 to and for the benefit effectiveness 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 Registration Statement then in effect until such time as 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 Statement 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 Form S-3 covering 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required has been declared effective by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersCommission.
(cf) IfNotwithstanding anything to the contrary contained in this Agreement, in connection with an Underwritten Offering, the managing underwriter(s) advise no event shall the Company that in its be permitted to name any Holder or their reasonable opinion the number affiliate of securities proposed to be included in such registration exceeds the 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 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 number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by a Holder as any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration underwriter without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch Holder.
(d) A registration 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 If the Company to file shall receive a Registration Statement registering for sale all written request by the DLJ Entities or part of their respective Registrable Securities Permitted Transferees (any such requesting Person, a "Selling Stockholder") that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Stockholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "Demand Registration") promptly notify all Holders from whom at least 10 days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the Other Stockholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Selling Stockholders, then held by the Selling Stockholders; provided, however, that (i) the Holders shall not make 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, and
(ii) subject to the Holders will not be restrictions set forth in Section 3.04, all other Registrable Securities of the same type as that to which the request by the Selling Stockholders relates which any Other Stockholder entitled to require request the Company to effect more than three an Incidental Registration (3as such term is defined in Section 5.02) Demand Registrations in pursuant to Section 5.02 (all such Stockholders, together with the aggregate under this AgreementSelling Stockholders, and (iiithe "Holders") has requested the Company will to register by written request received by the Company within 5 days after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than one (1) six Demand Registrations for the DLJ Entities; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock to be included in such Demand Registration, in the reasonable opinion of DLJMB exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand Registration would constitute the Initial Public Offering, or (y) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 5-day period referred 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 4.9 of this Agreement; provided, that (i5.01(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other 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 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 number of Registrable Securities requested to be included therein therein. The Selling Stockholders requesting a registration under this Section 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 each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without unless the prior written consent participating Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale and (y) less than 75% of the Registrable Securities pursuant to the registration, and included in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will statement has been sold thereunder, such registration statement shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as considered a Demand Registration or (ii) if the registration requested pursuant to this Maximum Offering Size (as defined below) is reduced in accordance with Section 4.2 does not remain continuously effective until forty-five (455.01(e) days after the commencement of the distribution by the Holders such that less than 66 2/3% of the Registrable Securities covered by such registration, then of the Company shall continue Selling Stockholders sought to be obligated to effect included in such registration are included.
(e) If a Demand Registration pursuant involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Stockholders that, in its view, (i) the number of Registrable Securities requested to this Section 4.2 be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the Registrable Securities owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities 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 Benchmark Securities requested to be registered by the Selling Stockholder and by all other DLJ Entities and their Permitted Transferees (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of shares of Registrable Securities requested to be registered);
(B) second, all Registrable Securities (other than Benchmark Securities) requested to be included in such registration by all DLJ Entities and their Permitted Transferees and any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such DLJ Entities and their Permitted Transferees and such other Holders on the basis of the relative number of shares of Registrable Securities (excluding any Benchmark Securities) requested to be included in such registration. In circumstances not including ); and
(C) third, any securities proposed to be registered by the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Sources: Stockholders Agreement (Mueller Holdings (N.A.), Inc.)
Demand Registration. (a) Subject At any time from and after 180 days following the Effective Date and subject to the provisions Sections 2(c) and 2(d) hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders receipt of a majority of Registrable Securities shall have written request from a Holder (the right to require "INITIATING DEMAND HOLDER") requesting that the Company to file effect a Registration Statement registering for sale registration (a "DEMAND REGISTRATION") under the Securities Act covering all or part of their respective the Registrable Securities held by such Holder, 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 such Holder, in lieu of exercising its rights under the Securities Act Section 3 hereof, may elect (a “Demand Registration”) by delivering a written request therefor notice sent to the Company within twenty (i20) specifying days from the date of such Holder's receipt of the aforementioned Company's notice) to have all or part of such Holder's Registrable Securities included in such registration thereof pursuant to this Section 2, and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration. Thereupon the Company shall, as expeditiously as is reasonably possible, file with the SEC and use commercially reasonable efforts to cause to be included in such declared effective, a registration by such Holder or Holders, statement (iia "DEMAND REGISTRATION STATEMENT") specifying whether the intended method of disposition thereof is pursuant relating (subject to an Underwritten Offering (as defined below), and (iiiSection 2(b) containing hereof) to all information about such Holder required to be 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 (y) use reasonable best 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 which the Company has been so requested to register; register by such Holders ("PARTICIPATING DEMAND HOLDERS") for sale, to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered, provided, however, that the aggregate number of Registrable Securities requested to be registered by all Participating Demand Holders shall be, subject to Section 2(b) below, at least the greater of (a) five percent (5%) of the Class A Stock issued and outstanding on the Effective Date, calculated on an As Converted Basis (as defined in the Certificate of Incorporation) as of the date of the Demand Registration Statement, and (b) an aggregate value of $100,000,000, based on the closing trading price of the Class A Stock on the date the demand to file such Demand Registration Statement is made.
(b) If the Initiating Demand Holder so requests that the offering be underwritten with a managing underwriter (which shall be selected in the manner set forth in Section 12 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 have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. The Company shall include such Registrable Securities in a Demand Registration even if the Maximum Number of Securities is less than the threshold set forth in Section 2(a) above. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis, unless any of the Participating Demand Holders otherwise agree between or among themselves and notifies the Company in writing of such agreement. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Registration any other Securities of the Company, and then other Securities held by other security holders of the Company, on a pro rata basis if necessary, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(c) The Shareholders together with all Holders who are assignees or transferees of the Shareholders, or assignees or transferees of an assignee or transferee of the Shareholders shall collectively be entitled to sixteen (16) registrations of Registrable Securities pursuant to this Section 2. Each Shelf Registration pursuant to Section 4 hereof shall be deemed one Demand Registration pursuant hereto.
(d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file (i) the Holders shall not make 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 Statement under this Agreement in any six (6) six-month period, or (ii) any Demand Registration Statement within ninety (90) days following the date of effectiveness of any Registration Statement (other than a Shelf Registration Statement).
(be) The offering of the Registrable Securities A Demand Registration requested pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (iSection 2(a) 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 hereof shall not be unreasonably withheld or delayed deemed to have been effected with respect to any Participating Demand Holder that is not able to register 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 to and for the benefit sell at least 80% 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 number of Registrable Securities requested to be included therein by each on behalf of such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included Holder in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch registration.
(df) A registration will not be deemed to have been effected as a Participating Demand Registration unless 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 by the Holders are included in such registration, and the Company has complied in all material respects with Holder may withdraw its obligations under this Agreement request with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effective date of marketing the Demand Registration Statement relating thereto by providing to the Company written notice. Upon any such withdrawal, if the Company determines not to otherwise continue with such Registration Statement for the purpose of registering Class A Stock of the Company, another Holder or another shareholder of the Company, the withdrawing Participating Demand Holder shall be obligated, pro rata with any other withdrawing Participating Demand Holder, to reimburse the Company, within 20 days of the date of the written notice of withdrawal, for all Expenses (as defined in Section 12 below) incurred by the Company, in connection with such withdrawn Demand Registration that would not otherwise have been incurred by the Company. Any such withdrawn Demand Registration shall be counted with respect to such Holder for purposes of Section 2(c) hereof as a completed Demand Registration, provided unless such withdrawal was the result of a change in market conditions that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) would materially adversely effect the amount and/or price of the proviso Registrable Securities to Section 4.2(a)be included in the Demand Registration.
Appears in 1 contract
Demand Registration. (a) Subject to From and after the provisions hereof, at any time on or after earlier of the date that is 180 days one calendar year after the Closing Date date hereof, after receipt of a written request from the Holders owning 50% of the Registrable Securities of each class requesting that the Company effect the registration of all or a portion of the Registrable Securities and specifying the intended method or methods of disposition thereof (as defined in the Merger Agreementa "Holder Notice"), the Holders of a majority of Registrable Securities shall have Company shall, as expeditiously as is possible, use its reasonable commercial efforts to effect the right to require the Company to file a Registration Statement registering registration for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of all shares of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 which the Company has been so requested to registerregister by such Holders, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of such Registrable Securities so registered; providedPROVIDED, howeverHOWEVER, that (i) the Holders Company shall not make 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 required to effect more than one (1) Demand Registration in registration of any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in this Section 2(a) except as otherwise expressly provided herein. If the form managing underwriter of an underwritten a proposed 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 writing that, in its or their reasonable opinion opinion, the number of securities proposed to be included in such registration exceeds the 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 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 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 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 75% distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the 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, then the Company may require all selling security holders (other than the Company) 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 registrationregistration 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 registration that were not included in such registration due to such pro rata reduction being referred to herein as the "Reduction Shares", and the registration 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 has complied in all material respects with its obligations under 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 Agreement with respect thereto; providedSection 2(a) or, howeverif the foregoing offer to sell or resulting sale is then lawful, that if, after it has become effective, to repurchase the Reduction Shares at the higher of (i) such Registration Statement or the related offer, sale or distribution of price per share for which Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are were actually sold by in the selling Holder or Holders pursuant to the Registration StatementFailed Registration, or (ii) if, in the case of an Underwritten Offering, Market Price on the date the Repurchase/Register Notice is sent to the Company fails to provide Full Cooperationin compliance with this Agreement; PROVIDED, then such registration will HOWEVER, that the Holders shall not be deemed not hereby or thereby to have been effected for purposes of clause (ii) of made any offer to sell to the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 Company that does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then comply with applicable law and the Company shall continue not be entitled or deemed to be obligated entitled to effect a Demand Registration pursuant repurchase such Reduction Shares or to this Section 4.2 of be offered the Registrable Securities included in right to or solicit the right to repurchase such registration. In circumstances not including 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 occur at such time within three calendar months after the events described in date that the immediately two preceding sentences Company receives the related Repurchase/Register Notice subject to the other provisions of this Section 4.2(d2(a), and otherwise at such time and place as the Company may determine, and each Holder of Registrable Securities the parties hereto agrees to execute and deliver such agreements, instruments, and other documents, and to take such other actions, as may be necessary or desirable to effect any such repurchase in compliance with all applicable laws. The Company shall respond to such Repurchase/Register Notice by written notice to the Purchaser within 30 business days after its receipt of the Repurchase/Register Notice (an "Election Notice"), which 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 permitted voluntarily deemed to withdraw all or any part have elected to register such Reduction Shares if it does not give such notice within such 30 business day period. If the Company so elects to repurchase such Reduction Shares, and if the Market Price requires an agreement of its Registrable Securities from a Demand Registration at any time prior the Company and such holders as to the commencement of marketing fair market value of such Demand RegistrationReduction Shares, provided that the consummation of such registration nonetheless repurchase shall count not be required to be consummated until as a Demand Registration for purposes soon as practicable after such fair market value has been determined as set forth in the definition of clause (ii) of the proviso to Section 4.2(a)Market Price set forth herein.
Appears in 1 contract
Sources: Registration Rights Agreement (Crown Northcorp Inc)
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on during such periods as are provided for in the Lock-Up Agreement or after as are agreed by the date Issuer (the “Demand Request”) requesting that is 180 the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 30 days after such request, file with the Closing Date Commission a registration statement with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to be declared effective under the 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:
(as defined in the Merger Agreement), i) the Holders of a majority of Registrable Securities shall have the right may collectively exercise their rights to require the Company request registration under this Section 2.01(a) on not more than two occasions (each such registration being referred to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (herein as a “Demand Registration”);
(ii) by delivering a written request therefor the Issuer shall not be required to effect the Company (i) specifying Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 1,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) any Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision 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 this Agreement to the approval of the Companycontrary, 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECeffected, at least 75% of the Registrable Securities and, therefore, not requested to be included in the registration 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; provided, however, that if, after it has become effectiverights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration Statement has not become effective under the 1933 Act or (ii) if such Demand Registration, after it became effective under the related offer1933 Act, sale or distribution of Registrable Securities thereunder is or becomes was not maintained effective under the subject 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for 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 be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the periods referred to in Section 2.01(a), the Holders shall not lose their right to their Demand Registration under Section 2.01 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer (but not for the account of stockholders other than Holders) in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits managing underwriter referred to in Section 2.03(b) that, in such underwriter’s good faith view, the number of shares of such Registrable Securities and additional equity securities exceeds the largest number of shares that can be sold in such registration without having an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated (or that the inclusion of shares for the account of the Issuer would, in such underwriter’s good faith view, have such an adverse effect), then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering (the “Maximum Offering Size”) shall be allocated in the following priority:
(i) first, so much of the Issuer Securities proposed to be registered for the account of the Holders as would not cause the offering to exceed the Maximum Offering Size (to be allocated among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each); and
(ii) second, all Registrable Securities requested to be included in such registration for the account of the Issuer; provided that the Issuer may not include securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 2.01(d), elect to so include Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder.
(e) If the Issuer invokes a Market Interfering Delay during the Subsequent Period, the Issuer shall give prompt notice at least 30 days prior to the anticipated filing date of the registration statement relating to the registration which is deemed the subject of such Market Interfering Delay, to each Holder, which notice shall set forth such Holder’s rights under this Section 2.01(e) and shall offer such Holder the opportunity to include in such registration statement such number of Registrable Securities as the Holders so desire but not to have been effected as a Demand Registration or exceed up to 50% of the Registrable Securities then held by all such Holders. Upon the request of any such Holder made within 20 days after the receipt of notice from the Issuer (ii) which request shall specify the number of Registrable Securities intended to be registered by such Holder), the Issuer shall use its commercially reasonable efforts to effect the registration under the 1933 Act of all Registrable Securities that the Issuer has been so requested to register by all such Holders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered, provided that if, at any time after giving notice of its intention to register any Issuer Securities pursuant to this Section 4.2 does not remain continuously 2.01(e) and prior to the effective until forty-five (45) days after the commencement date of the distribution by the Holders of the Registrable Securities covered by registration statement filed in connection with such registration, then the Company Issuer shall continue determine for any reason not to register the securities to be obligated offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to effect a Demand Registration pursuant all such Holders and, thereupon, shall be relieved of its obligation to this Section 4.2 of the register any Registrable Securities included in connection with such registration. In circumstances not including the events described in the immediately two preceding sentences of No registration effected under this Section 4.2(d)2.01(e) shall relieve the Issuer of its obligations to effect any Demand Registration to the extent required by this Agreement. The Issuer shall pay all Registration Expenses in connection with such registration during the Subsequent Period. Notwithstanding the foregoing, each Holder the Issuer shall not be entitled to both a Disadvantageous Condition Delay and a Market Interfering Delay during the Subsequent Period and is entitled to only one Market Interfering Delay during the Subsequent Period in any event. Furthermore, the duration of Registrable Securities the Subsequent Period shall be permitted voluntarily to withdraw all or any part extended by the number of its Registrable Securities from a Demand Registration at any time prior days equal to the commencement period of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of any Disadvantageous Condition Delay occurring during the proviso to Section 4.2(a)Subsequent Period.
Appears in 1 contract
Sources: Registration Rights Agreement (Nptest Holding Corp)
Demand Registration. (a) Subject 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, any Holder or group of Holders that hold, in the aggregate, at least 5% of the outstanding Registrable Securities, may request in writing (“Demand Registration Request”) that the Company effect the registration of all or part of such Holder’s or Holders’ Registrable Securities with the Commission under and in accordance with the provisions hereofof the Securities Act (each, at any time on a “Demand Registration”). The Company will file a Registration Statement covering such Holder’s or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Holders’ Registrable Securities requested to be registered, and shall have the right use its reasonable best efforts to require cause such Registration Statement to be declared effective, as promptly as practicable after receipt of such request; provided, however, that the Company will not be required to file a Registration Statement registering for sale all or part of their respective pursuant to this Section 5(a):
(A) unless the Registrable Securities under requested to be sold by the Holders pursuant to such Registration Statement have an anticipated aggregate gross offering price (before deducting underwriting discounts and commission) of at least $25.0 million;
(B) if the Registrable Securities Act requested to be registered are already covered by an existing and effective Registration Statement and such Registration Statement may be utilized for the offer and sale of the Registrable Securities requested to be registered;
(C) if a “Demand Registration”) registration statement filed by delivering a written request therefor to the Company shall have previously been initially declared effective by the Commission within the one hundred eighty (180) days preceding the date such Demand Registration Request is made; and
(D) if the number of Demand Registration Requests previously made pursuant to this Section 5(a) shall equal or exceed five (5); provided, however, that a Demand Registration Request shall not be considered made for purposes of this clause (D) unless the requested Registration Statement has been declared effective by the Commission for more than 75% of the full amount of Registrable Securities for which registration has been requested.
(b) A Demand Registration Request shall specify (i) specifying the number then-current name and address of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 number of Registrable Securities requested to be included therein by each such Holder. No shares registered, (iii) the total number of Common Stock held by any Person other than Registrable Securities held 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 Holders shall be included Company under the Securities Act, so that such amended registration statement will permit the disposition (in accordance with the intended methods of disposition specified as aforesaid) of all of the Registrable Securities for which a Demand Registration without Request has been properly made under Section 5(b) hereof. If the prior written consent Company so amends a previously filed registration statement, it will be deemed to have effected a registration for purposes of Section 5(a) hereof; provided, however, that the Effective Date of the holders amended registration statement, as amended pursuant to this Section 5(c) shall be the “the first day of a majority effectiveness” of such Registration Statement for purposes of determining the period during which the Registration Statement is required to be maintained effective in interest of the Registrable Securitiesaccordance with Section 5(e) hereof.
(d) A registration will not be deemed to have been effected as Within five (5) Business Days after receiving a Demand Registration unless Request, the Company shall give written notice of such request to all other Holders of Registrable Securities and shall, subject to the provisions of Section 6(c) in the case of an Underwritten Offering, include in such registration all such Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) days after the Company’s giving of such notice, provided that such Registrable Securities are not already covered by an existing and effective Registration Statement relating thereto has been declared effective by that may be utilized for the SEC, at least 75% offer and sale of the Registrable Securities requested to be included registered in the registration manner so requested.
(e) The Company will use its reasonable efforts to keep a Registration Statement that has become effective as contemplated by the Holders are included in such registrationthis Section 5 continuously effective, and not subject to any stop order, injunction or other similar order or requirement of the Company has complied Commission:
(A) in the case of a Registration Statement other than a Shelf Registration Statement, until all material respects with its obligations under this Agreement with respect theretoRegistrable Securities registered thereunder have been sold pursuant to such Registration Statement, but in no event later than two hundred seventy (270) days from the Effective Date of such Registration Statement; and
(B) in the case of a Shelf Registration Statement, until the earlier of: (x) three (3) years following the Effective Date of such Shelf Registration Statement; and (y) the date that all Registrable Securities covered by such Shelf Registration Statement shall cease to be Registrable Securities; provided, however, that if, after it has become effective, (i) such Registration Statement or in the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject event of any stop order, injunction or other similar order or requirement of the SEC or Commission relating to any other governmental or administrative agencyShelf Registration Statement, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by such Shelf Registration Statement remain unsold, the period during which such Shelf Registration Statement shall be required to remain effective will be extended by the number of days during which such stop order, injunction or similar order or requirement is in effect; provided further, however, that if any Shelf Registration Statement was initially declared effective on Form S-3 and, prior to the date determined pursuant to Section 5(e)(B), the Company becomes ineligible to use Form S-3, the period during which such Shelf Registration Statement shall be required to remain effective will be extended by the number of days during which the Company did not have an effective Registration Statement are actually sold by the selling covering unsold Registrable Securities initially registered on such Shelf Registration Statement.
(f) The Holder or Holders making a Demand Registration Request may, at any time prior to the Effective Date of the Registration Statement relating to such registration, revoke their request for the Company to effect the registration of all or 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) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such requested registration that has been revoked will be deemed not to have been effected for purposes of clause Section 5(a).
(iig) of the proviso to Section 4.2(a). If (i) a registration requested Registration Statement filed pursuant to this Section 4.2 5 is deemed not a Shelf Registration Statement, then upon the demand of one or more Holders, the Company shall facilitate a “takedown” of Registrable Securities in the form of an Underwritten Offering, in the manner and subject to have been effected as a Demand Registration the conditions described in Section 6 of this Agreement, provided that (i) the number of shares included in such “takedown” shall equal at least ten percent (10%) of all Registrable Securities at such time or (ii) the registration Registrable Securities requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution be sold by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities “takedown” shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause have an anticipated aggregate offering price (iibefore deducting underwriting discounts and commission) of the proviso to Section 4.2(a)at least $25.0 million.
Appears in 1 contract
Sources: Registration Rights Agreement (Harvest Oil & Gas Corp.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement)Company’s Common Stock pursuant to an effective registration under the Securities Act, the Holders holders of a majority of the Registrable Securities shall have the right to require may notify the Company that they intend to file a Registration Statement registering offer or cause to be offered for public sale all or part any portion of their respective Registrable Securities under in the Securities Act (a “Demand Registration”) by delivering a written request therefor to manner specified in such request. Upon receipt of such request, the Company (i) specifying the number 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 the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable its best efforts to expeditiously effect (but in any event no later than sixty (60) days after such request) the registration of all Registrable Securities whose holders request participation in 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 Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) registration pursuant to a request under this Section 2 more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. 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 any twelve (12which 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) month periodunless 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) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to 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 Numberstatement and, such if necessary, (iv) Registrable Securities to be allocated pro rata among the Holders thereof on the basis Securities. If there is a reduction of the number of Registrable Securities requested pursuant to clause (iv), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than 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 Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration 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 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registration, and offering (which approval will not be unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has Securities Act is applicable) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereof[***], at Purchaser and any time on or after the date that is 180 days after the Closing Date permitted transferee of Purchaser (as defined in the Merger Agreement), the Holders of each a majority of Registrable Securities “Holder”) [***] shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Shares held by or issuable to them (excluding Shares then subject to the lock-up restrictions) (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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) If 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 is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select 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 CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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.
(ciii) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds 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) 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 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 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[***].
(div) A registration 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 75% of the Registrable Securities requested to be included [***] in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (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 less than all of the Registrable Securities covered [***] by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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) the last sentence of the proviso to Section 4.2(a6(a)(i). If (i) a registration requested pursuant to this Section 4.2 6(a) is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 6(a) does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 6(a) of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d6(a)(iv), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a6(a)(i).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities The Holder shall have the right at any time by written notice (the "Demand Notice") given to require the Company, to request the Company to file a Registration Statement registering for sale all or part register under and in accordance with the provisions of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder all or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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) portion of the Registrable Securities that the Company has been so requested to registerShares designated by such Holder; provided, however, that (i) the Holders shall not make 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 number of Registrable Shares requested to be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities registered pursuant to such any Demand Registration may Notice and pursuant to any related Demand Notices received pursuant to the following sentence shall be in the form of an underwritten public offering at least 100,000 (an “Underwritten Offering”). In such casesubject to adjustment) and provided, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringfurther, provided however, that such Holders may designate a co-managing underwriter to participate in registration shall, at the Underwritten Offering, subject to the approval option of the Company, which approval shall not be unreasonably withheld on Form S-3 (or delayed and (iiits successor form) if such form is then available for use by the Company. Upon receipt of any such Demand Notice, the Company shall (together promptly notify any other Holders of the receipt of such Demand 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, in the event that such Demand Registration involves an Underwritten Offering and the managing underwriter or underwriters participating in such offering advise in writing the 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 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed Shares to be included in such registration exceeds offering that the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders total number of Registrable Securities Shares to be included in such Underwritten Offering and offering exceeds the amount that can be sold in (iior during the time of) such offering without delaying or jeopardizing the Company will success of such offering (including the price per share of the Registrable Shares to be obligated and required to include in such Underwritten Offering only that number sold), then the amount of Registrable Securities requested by the Holders thereof Shares to be included in offered for the account of such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to Holders shall be allocated reduced pro rata among the Holders thereof on the basis of the number of Registrable Securities requested Shares to be included therein registered by each such Holder. No shares The Holders as a group shall be entitled to three Demand Registrations pursuant to this Section 2 unless any Demand Registration does not become effective, is not maintained for a period (whether or not continuous) of Common Stock held 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 Holders is reduced pro rata as described in the preceding sentence by any Person other 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 Demand Notice given by Holders in accordance with Section 2(a) hereof, shall file with the 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 intended method or methods of distribution, of the total number of Registrable Securities held Shares specified by the Holders in such Demand Notice, which may at the option of the Company include a "shelf" registration (a "Shelf Registration") pursuant to Rule 415 under the Securities Act (a "Demand Registration").
(c) The Company shall use commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 2 continuously effective and usable for the resale of the Registrable Shares covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period of one hundred twenty (120) days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of a Shelf Registration, continuously from the date on which the SEC declares such Registration Statement effective, in either case (x) until all the Registrable Shares covered by such Registration Statement have been sold pursuant to such Registration Statement), and (y) as such period may be extended pursuant to this Section 2.
(d) The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be included extended by the aggregate number of days of all Holdback Periods (as defined in a Demand Section 4) and all Interruption Periods (as defined in Section 6(k)) occurring during such Registration and such period and any extension thereof is hereinafter referred to as the "Effectiveness Period."
(e) Except to the extent required by agreements with other security holders of the Company entered into prior to the date of the Stock Purchase Agreement, the Company shall not include any securities that are not Registrable Shares in any Registration Statement filed pursuant to this Section 2 without the prior written consent of the holders Holders of a majority in interest number of the Registrable SecuritiesShares covered by such Registration Statement, which consent shall not be unreasonably withheld.
(df) A registration will not be deemed to have been effected as Holders of a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% majority in number of the Registrable Securities requested Shares to be included in the registration 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; provided, however, that if, after it has become effective, (i) such a Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration2 may, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effective date of marketing of the Registration Statement relating to such Demand Registration, provided that revoke such registration nonetheless request by providing a written notice to the Company revoking such request. Notwithstanding such revocation, such request shall count as be deemed to be a Demand Registration pursuant to Section 2(a) unless the Holders of Registrable Shares who revoke such request shall reimburse the Company for purposes of clause (ii) all its out-of-pocket expenses incurred in the preparation, filing and processing of the proviso Registration Statement; provided, however, that, if such revocation was based on the Company's failure to Section 4.2(a)comply in any material respect with its obligations hereunder, such reimbursement shall not be required.
Appears in 1 contract
Sources: Stock Purchase Agreement (Churchill Environmental & Industrial Equity Partners Lp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined As provided for in the Merger Agreement)Section 3.2, the Company may include in a Demand Registration Equity Shares for the account of the Company, the other Holders of a majority of Registrable Securities shall have or other holders thereof exercising contractual piggy-back or demand rights, on the right to require same terms and conditions as the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included therein for the account of the Holder commencing the Demand Registration; PROVIDED, HOWEVER, that (i) if the managing Underwriter or Underwriters of any underwritten offering described in Section 3.1 have informed the Company in writing that it is their opinion that the total number of Equity Shares which the Company and the Holders and any other holders participating therein intend to include in such registration by offering is such Holder or Holdersas to materially and adversely affect the success of such offering, then (x) the number of Equity Shares to be offered for the account of such other holders (if any) shall be reduced (to zero, if necessary), in the case of this clause (x) PRO RATA in proportion to the respective number of Equity Shares requested to be registered, (iiy) specifying whether thereafter, if necessary, the intended method number of disposition thereof is pursuant Equity Shares to an Underwritten Offering be offered for the account of the Company (as defined below)if any) shall be reduced (to zero, if necessary) and (iiiz) containing all information about such thereafter, if necessary, the number of Equity Shares to be offered for the account of the Holders (including the Holder required commencing the Demand Registration) shall be reduced PRO RATA in proportion to the respective number of Equity Shares requested to be registered to the extent necessary to reduce the total number of Equity Shares requested to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 number of the CompanyEquity Shares, which approval shall not be unreasonably withheld or delayed if any, recommended by such managing Underwriters and (ii) if the Company shall (together with offering is not underwritten, no other party, including 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 OfferingCompany, 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 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 permitted 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 offer securities 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Holder commencing the Demand Registration Statement relating thereto has been declared effective by consents to the SECinclusion of such Equity Shares therein, at least 75% of the Registrable Securities requested such consent not to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)unreasonably withheld.
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereofterms and conditions of this Agreement, at any time on or and from time to time after the date that is 180 90 days after the Closing Date (as defined in the Merger Agreement)date hereof, the Holders of a majority of Registrable Securities shall have the right upon written notice to require the Company to file (a Registration Statement registering for sale all “Demand Notice”) delivered by one or part of their respective Registrable Securities under more Qualified Holders requesting that the Securities Act Company effect the registration (a “Demand Registration”) under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of any or all of the Registrable Securities held by delivering a written request therefor such Qualified Holder(s) which offering is expected to yield aggregate gross proceeds of at least $25 million, the Company shall promptly (ibut in any event, not later than five Business Days following the Company’s receipt of such Demand Notice) specifying the number give written notice of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandDemand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Company shall promptly file the appropriate Registration Statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to effect, at the earliest practicable date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best 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 regulationsunder the applicable state securities laws of (A) of the Registrable Securities that which the Company has been so requested to register; providedregister by the Qualified Holder(s) in the Demand Notice, however, that (iB) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for all other Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (iithe same class or series as those requested to be registered by the Qualified Holder(s) the Holders will not be entitled to require which the Company has been requested to effect more than three register by the Demand Eligible Holders by written request (3the “Demand Eligible Holder Request”) Demand Registrations in given to the aggregate under this AgreementCompany within five Business Days after the giving of such written notice by the Company, and (iiiC) any Registrable Securities to be offered and sold by the Company will not be obligated Company, in each case subject to effect more than one Section 2(b)(ii), all to the extent required to permit the disposition (1in accordance with the intended methods of disposition) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such be so registered. The Holders’ rights to request a Demand Registration may set forth in this Section 2(b) shall not be in exercisable at any time if the form of an underwritten public offering (an “Underwritten Offering”). In such case, Company (i) the Company may designate the managing underwriter(s(x) is not in violation of the Underwritten Offeringits 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 in accordance with Section 2(a), 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has otherwise complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Midstates Petroleum Company, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on Any one or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), more of the Holders of a majority of Registrable Securities (the “Initiating Holders”) shall have the right to require request the Company to file a effect one registration on Form S-3 (the “Demand Registration Statement registering for sale Statement”) with respect to all or a part of their respective Registrable Securities under the Securities Act Shares (a “Demand Registration”) by delivering a written such request therefor to the Company (i) specifying shall be in writing and shall state the number of Registrable Securities Shares to be disposed of and the intended method of disposition). 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 by such Holder or Holders, (ii) specifying whether have an aggregate fair market value of less than $50,000,000. Subject to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandforegoing, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will use its commercially reasonable best efforts to effect promptly the registration of Shares on Form S-3 to the extent requested by the Initiating Holders thereof for purposes of disposition and, subject to Sections 5(c) and (d) hereof, to keep such registration (includingDemand Registration Statement effective for a period not in excess of 60 days or until the Initiating Holders have completed the distribution described in the Demand Registration Statement, without limitationwhichever first occurs and if the Demand Registration Statement is not effective for this period, appropriate qualification then it shall not count as a Demand Registration Statement under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued this Agreement. The Demand Registration Statement will contain a plan of distribution as designated by the Holders. The Demand Registration Statement shall also cover, to the extent allowable under the Securities Act and any other governmental requirements the rules promulgated thereunder (including Rule 416) such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or regulations) similar transactions with respect to the Shares. If the Initiating Holder (or a majority in interest of the Registrable Securities that Initiating Holders) so elect, the Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 Shares pursuant to such Demand Registration may Statement shall be in the form of a firm commitment underwritten offering, in which case all persons or entities participating in such registration may be required to sell their Shares which are included in such registration to the underwriters at the same price and on the same terms of underwriting as is applicable to the Initiating Holder or Holders. If the Demand Registration Statement involves an underwritten public offering (an “Underwritten Offering”). In offering, the sole or managing underwriters and any additional investment bankers and managers to be used in connection with such case, (i) registration shall be selected by the Company may designate the managing underwriter(s) Initiating Holder or a majority in interest of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingInitiating Holders, subject to the approval of the Company, which approval shall not be unreasonably withheld withheld, delayed 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 Holdersconditioned.
(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 securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after first anniversary of the Closing Date consummation of the Merger, the Holder(s) of Shares representing a "Majority" (as defined in the Merger Agreementhereinafter defined), the Holders of a majority of Registrable Securities such securities shall have the right (which right is in addition to require the Piggyback Registration rights provided for under Section 1 hereof), exercisable by written notice to the Company, which may be given ten (10) months from the date hereof (a "Demand Registration Request"), to have the Company prepare and file with the Commission, at the sole expense of the Company (except as hereinafter provided), in respect of up to file 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 equal to $2,500,000 (the "Demand Shares"), a Registration Statement registering for so as to permit a public offering and sale all of the Demand Shares; provided however, that the Company is then eligible to register the Demand Shares on Form S-3 (or part successor form) and, if the Holder intends to distribute the Demand Shares by means of their respective Registrable Securities under an underwriting, then the Securities Act (a “Holder shall so notify the Company in the Demand Registration”) Registration Request. The underwriter shall be selected by delivering a written request therefor the Holder and be reasonably acceptable to the Company. The Company (i) specifying and other stockholders may, at the number Company's sole discretion, have other shares of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be Company's common stock included in such Registration Statement Statement, provided that in accordance with applicable lawthe 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. As soon as practicable after the receipt For purposes of such demandthis Agreement, the Company term "Majority" in reference to the Holders shall mean in excess of sixty-five percent (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best 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 regulations65%) of the Registrable Securities then outstanding Shares held by Holders that have not been resold to the Company has been so requested public pursuant to register; provided, however, that (i) a registration statement filed with the Holders shall not make a request for a Demand Registration Commission 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 periodAct.
(b) The offering 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 the Registrable Securities pursuant to such Demand Registration may be Request; provided that nothing herein shall require the Company to undergo an audit, other than in the form ordinary course of an underwritten public offering business; and provided further that no Registration Statement shall become effective before the one (an “Underwritten Offering”)1) year anniversary of the consummation of the Merger. 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 caseoffering, provided such underwriting agreement (i) is with an underwriter selected by the Holder and reasonably acceptable to 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 contains customary underwriting agreement in customary form provisions 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 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 Holdersselling stockholders.
(c) IfNotwithstanding any provision of this Section 2 to the contrary, in connection with an Underwritten Offeringif, at the time a Demand Registration Request is given to the Company under Section 2 hereof, the managing underwriter(s) advise 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 Company that in its opinion of counsel to the Company, the Registration Statement would be required to include information concerning such transactions or their reasonable opinion the number of securities proposed to be included in such registration exceeds parties thereto which is not reasonably available at the Underwriters’ Maximum Numbertime, then (i) the Company shall so advise all Holders promptly inform the holders of Registrable Securities the Demand Shares by written notice of such circumstances (a "Postponement Notice") and, at the Company's election to be included set forth in such Underwritten Offering the Postponement Notice, the filing of the Registration Statement may be postponed for one (and (iinot more than one) period not to exceed 180 days from the date on which the Demand Registration Request is given to the Company will be obligated and required under this Section 2 (notwithstanding any provisions herein to include the contrary); provided that in the event of such Underwritten Offering only that number postponement, the Holder may withdraw the Demand Registration Request during the 90 day period following the date on which the Notice of Registrable Securities requested Postponement was given by the Holders thereof Company, and thereafter the Holder will continue to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities entitled to be allocated pro rata among the Holders thereof on the basis of the 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested Request pursuant to this Section 4.2 is deemed not to have been effected 2 until such time as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or no longer possesses any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Shares.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders first anniversary of a majority of Registrable Securities shall have the right to require Qualified IPO, if the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request by a Holder (such requesting Holder, a "Selling Stockholder") that the Company effect the registration under the Securities Act of all or a portion of such Selling Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a “"Demand Registration”") by delivering a written request therefor at least 20 days prior to the Company anticipated filing date of the registration statement relating to such Demand Registration to all other Holders (the "Other Stockholders") and thereupon will use its best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(i) specifying the number Registrable Securities which the Company has been so requested to register by the Selling Stockholder; and
(ii) all other Registrable Securities which the Other Stockholders have requested the Company to register by written request received by the Company within 10 days after the receipt by the Other Stockholders of the written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 2.01(d) hereof, the Company shall not be obligated to effect more than two Demand Registrations for Urvanos and its Permitted Transferees and no more than six Demand Registrations for Urpasis and its Permitted Transferees; provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Registrable Securities to be included in such registration by such Holder Demand Registration, in the reasonable opinion of the Board, equals or Holdersexceeds $50,000,000; and provided further that the Company shall not, (ii) specifying whether the intended method of disposition thereof is in any event, be required to effect more than one Demand Registration pursuant to an Underwritten Offering (as defined below), and (iiithis Section 2.01(a) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawwithin any twelve month period. As soon as practicable after the receipt of such demandIn addition, the Company shall have the right to preempt any Demand Registration with a primary registration by delivering written notice (x) promptly notify all Holders within 10 days after the Company has received from whom the Selling Stockholder a request for registration has not been received and (y) use reasonable best 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 regulationsDemand Registration) of such intention to the Registrable Securities Selling Stockholder indicating that the Company has been so requested identified a specific business need and use for the proceeds of the sale of such securities and the Company shall use all commercially reasonable efforts to register; providedeffect a primary registration within 120 days of such notice. In the ensuing primary registration, however, that (i) the Holders shall not make 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 have such incidental registration rights as are set forth in Section 2.02 hereof. Upon the Company's preemption of a requested Demand Registration, such requested registration will not count as a Demand Registration. The Company shall not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under exercise this Agreement, and (iii) the Company will not be obligated to effect right of preemption more than one (1) Demand Registration time in any six (6) 12-month period. Notwithstanding the foregoing, in connection with any Demand Registration, Holders shall not be permitted to request that a registration statement be filed pursuant to Rule 415 (a "Shelf Registration Statement").
(b) The offering Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration (or, at any time prior to the date of any Shelf Takedown if a Shelf Registration Statement has been filed and declared effective (as such terms are defined below)), revoke such request, without liability to any Holders, by providing a written notice to the Company revoking such request, in which case such request, so revoked, shall be considered a Demand Registration may be in unless the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) Selling Stockholders reimburse the Company may designate for all Registration Expenses incurred by the managing underwriter(s) Company in connection with such registration, or unless such revocation arose out of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval fault of the Company, in which approval case such request 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 4.9 of this Agreement; 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 considered 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 HoldersDemand Registration.
(c) IfSubject to Section 2.01(b) above, the Company will pay all Registration Expenses in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the 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 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 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 SecuritiesRegistration.
(d) A registration will Demand Registration requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, at least 75% of Securities Act and (B) has remained effective until such time as the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section becomes effective such registration statement is interfered with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits such a Demand Registration shall not be deemed to have been effected.
(e) If the sale managing underwriter of an offering advises the Company that, in its view, the number of Registrable Securities pursuant requested to be included in a registration effected under this Section 2.01 (including any securities which the Company proposes to be included which are not Registrable Securities) exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringpriority listed below, up to the Company fails Maximum Offering Size:
(A) first, all Registrable Securities requested to provide Full Cooperation, then be included in such registration will be deemed by the Selling Stockholder and the Other Stockholders (allocated, if necessary for the offering not to have been effected for purposes of clause (ii) exceed the Maximum Offering Size, pro rata among such Selling Stockholder and such Other Stockholders on the basis of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement relative number of the distribution by the Holders shares of the Registrable Securities covered by such registration, then the Company shall continue requested to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) At any time on or after the first anniversary of a Qualified IPO, the Company may, in its sole discretion, file with the SEC a Shelf Registration Statement with respect to Registrable Securities then outstanding. After a Shelf Registration Statement has been filed, but before it has been declared effective by the SEC, Holders may not request a Demand Registration. After a Shelf Registration Statement has been declared effective by the SEC, a Holder may no longer exercise Demand Registrations for the purpose of effecting a registration, however, a Holder may exercise any Demand Registrations remaining under Section 2.01(a) to effect takedowns from such Shelf Registration Statement (a "Shelf Takedown"). In circumstances not including the events described in the immediately two preceding sentences connection with a demand relating to a Shelf Takedown, all other provisions of this Section 4.2(d), each Holder of Registrable Securities Agreement shall be permitted voluntarily continue 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)apply.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 publication by the Parent of financial results covering at least 30 days after of post Merger combined operations, upon written notice from the Closing Date Representatives (as defined hereinafter defined) in the Merger Agreement), manner set forth in Section 11(h) hereof requesting that the Holders of a majority of Registrable Securities shall have Parent effect the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any or all of the Registrable Securities, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Parent shall use its reasonable best efforts to effect, in the Company manner set forth in Section 5, the registration under the Securities Act of all of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, provided that:
(i) specifying 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 Holder requesting registration) by the lead underwriter of the proposed offering described below that, in 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 which Parent was In Registration prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) 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 pending 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 may be, and (2) 90 days after Parent makes such good-faith determination;
(iii) Parent shall not be obligated to 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 to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price then market value of less than $5,000,000, 150 million or (iiB) more than 36 months have elapsed since the Holders will not be entitled to require Effective Time;
(iv) at least four months have elapsed since the Company to effect last request made by the Representatives on behalf of any Holders; and
(v) no more than three (3) Demand Registrations in the aggregate demands under this Agreement, and (iii) the Company will not Section 2 shall be obligated required to effect more than one (1) Demand Registration in any six (6) month periodbe honored.
(b) The offering Notwithstanding any other provision of this Agreement to the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, contrary:
(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 4.9 of this Agreement; 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 requested 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 a 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 questionnairesthis Section 2, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration (and, therefore, not requested for purposes of subsection 2(a)), (A) unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the registration statement filed with respect to such Holder's Registrable Securities requested to be included in the registration 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; provided, however, that if, become effective or (B) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt 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 be distributed in accordance with the plan of distribution set forth in the related registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (other than by reason of an act or omission by such Holder) or waived by the underwriters; and
(ii) a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2(a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, unless such request is withdrawn by a Holder prior to the filing of a registration statement with the SEC; and
(c) In the event that any court prevents registration pursuant to this Section 2 shall involve, in whole or otherwise limits in part, an underwritten offering, a Holder shall have the right to designate an underwriter reasonably satisfactory to Parent as a co-manager of such underwritten offering and Parent shall have the right to designate the lead underwriter reasonably satisfactory to the Holder of such underwritten offering.
(d) Parent shall have the 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 Holder pursuant to Section 2(a); provided that Parent shall not have the right to cause the registration of such additional securities if such person is advised in writing (with a copy to the Parent) by the lead underwriter that, in such firm's good faith opinion, registration of such additional securities would materially and adversely affect the offering and sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered contemplated by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 If the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under receives from the Securities Act (a “Demand Registration”) by delivering Initiating Holders a written request therefor to that the Company (i) specifying the number of effect any registration, qualification or compliance with respect to issued Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandSecurities, the Company shall (xi) promptly notify within ten (10) days of the receipt by the Company of such request, give written notice of the proposed registration, qualification or compliance to all other Holders from whom the request for registration has not been received and (yii) as soon as practicable, use its commercially reasonable best efforts to effect such registration registration, qualification or compliance (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) ). The subject registration, qualification or compliance shall be made so as to permit or facilitate the sale and distribution of all or such portion of such Registrable Securities held by the Initiating Holders, in the form of common stock, as are specified in such request, together with all or such portion of the Registrable Securities that of any Holder or Holders joining in such request as are specified in a written request, received by the Company within twenty (20) days after receipt of such written notice from the Company; provided, that, the Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 2.5(a):
(i) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(ii) In any event after two such requests have been made; provided, that, a registration requested pursuant to this Section 2.5 shall not be deemed to have been effected for the purposes of this Section 2.5(a)(ii) unless (i) it has been so requested declared effective by the SEC, (ii) it has remained effective during such period as required by the SEC to effect the offering of all common stock registered pursuant to such registration, and (iii) the offering of common stock pursuant to such registration has been completed;
(iii) If the Company furnishes to such Holders a certificate signed by a duly authorized officer of the Company stating that in the good faith judgment of the Board of Directors it would be materially detrimental to the Company or its stockholders for a registration statement to be filed in the near future, then the Company's obligation to use its best efforts to register, qualify or comply under this Section 2.5 shall be deferred for a period not to exceed ninety (90) days from the date of receipt of written request from the Initiating Holders; provided, however, that (i) the Holders shall not make 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 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 4.9 of utilize this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) right more than two (2) Underwritten Offerings once in any twelve (12) month period; provided further, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in not register any other Shares during such Underwritten Offering and twelve (ii12) the Company will be obligated and required to 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 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.month period; or
(div) A registration 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement completion of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Qualified IPO.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Restricted Term, the Holders Investor and any Permitted Transferee of 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 their respective the Shares held by or issuable to them (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws 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 Company has been so requested to registerregister as soon as practicable (and in any case by the applicable Filing Date); provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a2.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the 25,000,000. The Holders will not shall be entitled to require the Company to effect more than three two (32) 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 If the offering of the Registrable Securities pursuant to such Demand Registration may be in the form of is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select 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 CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed 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 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 4.9 of this Agreement; 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 prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds 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) 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 only that registration the number of Registrable Securities securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such by all Holders of Registrable Securities to be allocated included in such Underwritten Offering, pro rata among the Holders thereof on the basis of the aggregate 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 , and, subject to the Holders shall be included conditions set forth in Section 2.8 hereto, on a Demand Registration without the prior written consent of pari passu basis with the holders of a majority in interest contractual registration rights provided under (i) the Investor Agreement, dated as of April 2, 2018, by and between the Registrable SecuritiesCompany 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”).
(d) A registration 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 (75% %) of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (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 all 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, or (ii) 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) the last sentence of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then 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 “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger terms of this Agreement), the Holders of a majority of Registrable Securities Company shall have the right use its reasonable best efforts to require the Company to file cause a Registration Statement registering for sale all or part of their respective Registrable Securities 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 (a “Demand Registration”i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to 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 delivering a written request therefor the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (ithe “Effectiveness Period”). The Company shall notify the Holders via e-mail of the effectiveness of a Registration Statement as promptly as practicable, and shall, if requested, provide the Holders with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.
(b) specifying Notwithstanding the registration obligations set forth in Section 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, 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 Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission to maximize the number of Registrable Securities to be registered), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) First, the Company shall reduce or eliminate any securities to be included in such registration by such Holder or Holders, other than Registrable Securities;
(ii) specifying whether Second, the intended method Company 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 disposition thereof is pursuant to an Underwritten Offering (as defined belowunregistered Warrant Shares held by such Holders), and ; and
(iii) containing all information about 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 required at least five (5) Trading Days’ prior written notice along with the calculations as to be included in 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 file with the 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 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.
(d) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the 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, the Company shall be deemed to have not satisfied this clause as of 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 is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement or (iv) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the 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 penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. As soon as practicable 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 in full within seven Trading Days after the receipt date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted 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 Purchase Agreement, no liquidated damages shall be payable (i) 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 written opinion letter to such effect, addressed and reasonably acceptable to the Holder and the Company’s transfer agent, if any, (ii) to a Holder with respect to an Event caused by any action of such demandHolder or failure of such Holder to take any action that such ▇▇▇▇▇▇ is required to take hereunder, or (iii) to a Holder in the 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 of the resale of Registrable Securities hereunder, the Company shall (xi) promptly notify all Holders from whom register the request for registration has not been received and (y) use reasonable best 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) resale of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 on another appropriate 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) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall (together with maintain 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 to and for the benefit effectiveness 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 Registration Statement then in effect until such time as 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 Statement 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 Form S-3 covering 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required has been declared effective by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersCommission.
(cf) IfNotwithstanding anything to the contrary contained in this Agreement, in connection with an Underwritten Offering, the managing underwriter(s) advise no event shall the Company that in its be permitted to name any Holder or their reasonable opinion the number affiliate of securities proposed to be included in such registration exceeds the 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 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 number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by a Holder as any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration underwriter without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch Holder.
(d) A registration 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined in date on which the Merger Agreement)Company becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Holders holders of at least fifty percent (50%) of the Registrable Securities may request the Company register under the Securities Act the Registrable Securities held by such requesting holders in a majority firm commitment underwritten public offering or any other method of distribution (including offerings involving a delayed or continuous offering pursuant to Rule 415 under the Securities Act); provided, however, that the holders of Registrable Securities shall be entitled under this Section 2 to no more than the number of shares of Common Stock sufficient to yield net proceeds equal to the aggregate number of Registrable Securities multiplied 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 holders of Registrable Securities shall be entitled to request additional registrations until the holders of Registrable Securities shall have yielded the right to require Minimum Demand Proceeds. Upon receipt of such request, the Company shall promptly deliver notice of such request to file a Registration Statement registering for sale all or part Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their respective 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 (a “Demand Registration”) by delivering a written request therefor 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 be required to effect registration pursuant to a request under this Section 2 more than one (i1) specifying time for the holders of the Registrable Securities as a group; provided further however, that if a registration statement does not include the number of Registrable Securities requested by the holders thereof to be included in such registration statement, it shall not be counted as a registration statement initiated pursuant to this Section 2. 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.
(b) With respect to a request for 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 underwritten) 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 registration. If the managing underwriter of such registration by such Holder or Holdersoffering determines in good faith that the number of securities sought to be offered should be limited due to market conditions, (ii) specifying whether then the intended method number of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required securities to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of underwritten public offering shall be reduced to a number deemed satisfactory by such demandmanaging underwriter, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best 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 provided that the Company has been so requested shares to register; provided, however, that be excluded shall be determined in the following order of priority: (i) securities held by any other Persons (other than the Holders shall not make holders of Registrable Securities) having a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000contractual, incidental "piggy back" right to include such securities in the registration statement, (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 securities offered on behalf 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 4.9 of this Agreement; 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. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on holders who did not make the basis provided in such underwriting agreement and completes and executes all questionnairesoriginal request for registration and, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month periodif necessary, and (biv) 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 Registrable Securities 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 securities proposed to be included in holders who requested such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities pursuant to be included in such Underwritten Offering and (ii) the Company will be obligated and required to 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 Section 2. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iii) or (iv), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) The Company shall have the Holders shall be included in a Demand Registration without right to approve the prior written consent of managing underwriter chosen by the holders of a majority in interest of the Registrable SecuritiesSecurities to be sold in such offering (which approval will not be unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Commission is applicable) to become effective within 90 days following the effective date of any registration required pursuant to this Section 2.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECIf, at least 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject time of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the request to register Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten OfferingSection 2(a), the Company fails is preparing a registration statement for a public offering (other than a registration effected solely to provide Full Cooperation, then such registration will be deemed not implement an employee benefit plan or a transaction to have been effected for purposes of clause (ii) which Rule 145 of the proviso to Section 4.2(a). If Commission is applicable) which in fact is filed and becomes effective within ninety (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (4590) days after the commencement 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 distribution Company's board of directors, would be adversely affected by the Holders requested registration to the material detriment of the Registrable Securities covered by such registrationCompany, 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 such offering or the date of commencement of such other activity, as the case may be. The aggregate amount of Black-Out Periods in any consecutive twelve month period shall continue to be obligated to effect a Demand Registration pursuant to not exceed 120 days. Nothing in this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder 2(d) shall preclude a holder of Registrable Securities shall be 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 Demand Registration, provided that such enjoying registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to rights which it might otherwise possess under Section 4.2(a)3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Preferred Payment Systems Inc)
Demand Registration. (a) (i) Subject to the provisions hereofrestrictions contemplated by Section 3, at any time on or after and for so long as the date that is 180 days after the Closing Date (as defined Investor beneficially owns Registrable Securities representing, in the Merger Agreement)aggregate and on an as-converted basis, more than 7.5% of the outstanding Total Equity (calculated on an as-converted basis) or Senior Notes with an aggregate principal value of more than $50 million, upon the written request of the Investor (for purposes of this Article IV, the Holders of a majority of Registrable Securities shall have the right to require “Demand Party”) requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Demand Party’s Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the amount and intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandthereof, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) thereupon will, as expeditiously as reasonably practicable, use its reasonable best efforts to effect such the 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) pursuant to this Section 4.1 of the Registrable Securities that which the Company has been so requested to registerregister by the Demand Party; provided, however, provided that (i) the Holders in no event shall not make 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 be required to effect more than three (3) Demand Registrations registrations (each of which may involve a Marketed Offering) pursuant to this Section 4.1; provided, further, that in the aggregate under this Agreement, and (iii) no event shall the Company will not be obligated to effect more than one (1) Demand Registration in prepare and file any six (6) month period.
(b) The offering such registration statement that would not obtain a minimum aggregate sales price 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 4.9 of this Agreement$25 million; provided, further, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement or participate (a) more than two (2) Underwritten Offerings in undertake a Marketed Offering under this Section 4.1 within a period of 90 days after the effective date of any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required other registration statement filed by the underwriter(s) in any prior underwritten offering conducted Company, the filing of a Shelf Prospectus Supplement by the Company on or the consummation of a Marketed Offering by the Company; and, provided, further, that the Company may satisfy its own behalf or on behalf obligations hereunder by filing a registration statement for an offering of securities of the Holders.
Company to be made on a continuous basis pursuant to Rule 415 (cor any successor provision thereto) Ifunder the Securities Act (together with any amendments thereto, in connection with an Underwritten Offeringand including any documents incorporated by reference therein, the managing underwriter(s) advise a “Shelf Registration Statement”), if the Company that in its or their reasonable opinion is then eligible to use such form at such time. For the number avoidance of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numberdoubt, then (i) if the Company shall so advise all Holders is eligible to file a Shelf Registration Statement, any demand to register more than one type of Registrable Securities to be included for sale in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering one offering shall constitute only that number of Registrable Securities requested by the Holders thereof to be included in such one 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a).
Appears in 1 contract
Demand Registration. (a) Subject 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 provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right 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 require 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 the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make 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, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated 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 effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so 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 4.9 of this Agreementregistered; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate file a registration statement relating to any registration request under this Section 2(a) (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required unless the aggregate requests by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf Holder 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 securities proposed to be included in Holders for such registration exceeds the 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 only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does cover not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other less 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 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 755.0% of the Registrable Securities requested outstanding Common Stock, (B) with respect to more than an aggregate of 3 registrations (which shall be included in the increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations statement) under this Agreement with respect thereto; provided, however, that if, after it has become effectiveSection 2(a), (iC) such Registration Statement or the related offer, sale or distribution within a period of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) 180 days after the commencement effective date of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue any other registration statement relating to be obligated to effect a Demand Registration pursuant to any registration request under this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).Section
Appears in 1 contract
Sources: Registration Rights Agreement (Provantage Health Services Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right Company’s Common Stock pursuant to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities an effective registration under the Securities Act (a the “Demand RegistrationIPO”) by delivering a written request therefor to ), the Company (i) specifying the number 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 the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for registration has not been received written notice and (y) use reasonable best efforts in such event the right of any Person to effect 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 (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 regulations33%) of the Registrable Securities that (or a lesser percent if the anticipated aggregate offering price, net of Registration Expenses and Selling Expenses, would exceed $10 million) request to participate in such registration under the Securities Act within the thirty (30) day period described above, the Company has been so requested will use its reasonable best efforts to registerexpeditiously effect the registration of all Registrable Securities whose holders request to participate in such registration under the Securities Act, but only to the extent provided for in this Agreement; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) registration pursuant to a request under this Section 2 more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. 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 any twelve which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 (12or have waived their right to join) month periodand 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) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities to be registered by the Company will be obligated and required pursuant to 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 Numberstatement and, such if necessary, and (iii) Registrable Securities to be allocated pro rata among the Holders thereof on the basis Securities. If there is a reduction of the number of Registrable Securities requested pursuant to clause (iii), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than 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 Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration 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 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registration, and offering (which approval will not be unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has Securities Act is applicable) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 1 contract
Sources: Registration Rights Agreement (Angion Biomedica Corp.)
Demand Registration. The Company, upon written demand (aa “Demand Notice”) Subject to of the provisions hereof, Holder(s) of at any time on or after least 51% of the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of total Registrable Securities shall have the right underlying all outstanding Purchase Options (“Majority Holders”) agrees to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act register (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 on no more than two occasions, all or any other governmental requirements or regulationsportion of the Registrable Securities so long as such registration is with respect to at least thirty-three percent (33%) of the Registrable Securities (or a lesser percent if the anticipated aggregate offering price, net of selling expenses, would exceed $5 million). For the avoidance of doubt, in the event that more than one Purchase Option is issued as compensation to an underwriter of the Company has been so requested in the Offering, a Demand Registration may be made only upon written demand of the Holders of at least 51% of the total Registrable Securities underlying all outstanding Purchase Options. On such occasion, the Company will file a registration statement covering the Registrable Securities within sixty (60) days after receipt of a Demand Notice and use its commercially reasonable efforts to registerhave such registration statement declared effective promptly thereafter, subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with a Demand Notice if the Company has filed a registration statement or in the Company’s good faith estimate it plans to file a registration statement within sixty (60) days following such demand with respect to which the Holder is entitled to piggy-back registration rights pursuant to Section 5.2 hereof and either: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Holder was or will be given the opportunity to exercise its piggy-back registration rights with respect to all of the underlying Registrable Securities having an anticipated aggregate under Section 5.2 hereof in connection with the offering price of less than $5,000,000, covered by such registration statement or (ii) the Holders will not be entitled if such registration statement relates 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 an underwritten primary 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 securities of the Company, which approval shall until the offering covered by such registration statement has been withdrawn or until thirty (30) days after such offering is consummated; provided further that the Company may be permitted to defer taking action with respect to filing a registration statement for a period of not more than ninety (90) days after the date of the Demand Notice if the Company’s board of directors determines in its good faith judgment that it would be unreasonably withheld materially detrimental to the Company and its stockholders for such registration statement to either become effective or delayed and remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form has a bona fide business purpose 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 preserving as set forth in Section 4.9 of this Agreementconfidential; 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) render the liability Company unable to comply with requirements under the Securities Act or Exchange Act. The Company covenants and agrees to give written notice of each Holder in respect its receipt of any indemnification, contribution or Demand Notice by any Holder(s) to all other obligation registered Holders of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out any portion of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made this Purchase Option issued 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 connection 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 Offering and/or the Registrable Securities disposed thereunder within ten (10) days from the date 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 terms receipt of such underwriting agreementDemand Notice. The Company Holders of this Purchase Option issued in connection with the Offering shall not be obligated to not, in the aggregate, effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed Demand Registrations pursuant to be included in such registration exceeds the 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 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 number of Registrable Securities requested to be included therein by each such Holderthis Section 5.1. 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 will not be deemed to have been effected count as a Demand Registration unless until the registration statement filed with the Commission with respect to such Demand 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 by the Holders are included in such registration, and the Company has complied in with all material respects with of its obligations under this Agreement hereunder with respect theretothereto unless the Majority Holders withdraw their request for such registration and elect not to pay the registration expenses therefor that were incurred by the Company; provided, however, that if, after it such registration statement has become been declared effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder pursuant to a Demand Registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement injunction of the SEC Commission or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringcourt, the Company fails registration statement with respect to provide Full Cooperation, then such registration Demand Registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If declared effective, unless and until, (i) a registration requested pursuant to this Section 4.2 such stop order or injunction is deemed not to have been effected as a Demand Registration removed, rescinded or otherwise terminated, and (ii) the registration requested Majority Holders thereafter elect to continue the offering. The Company shall bear all fees and expenses attendant to the first Demand Registration pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after 5.1, including the commencement reasonable and documented expenses of the distribution a single legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities covered by such registrationin an amount not to exceed $50,000, then but the Company Holders shall continue pay any and all underwriting commissions or brokerage fees related to be obligated the Registrable Securities, if applicable. The fees and expenses attendant to effect a an additional Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities 5.1 shall be permitted voluntarily borne by the Holder(s). The Company agrees to withdraw all or use its commercially reasonable efforts to cause the filing required herein to become effective promptly. The Company shall use its commercially reasonable efforts to cause any part of its Registrable Securities from registration statement filed pursuant to a Demand Registration to remain effective for a period of at any time prior to least six (6) consecutive months from the commencement of marketing effective date of such Demand Registrationregistration statement or, if earlier, until the distribution contemplated in the registration statement has been completed. The Holders shall only use the prospectuses provided by the Company to sell the shares covered by such registration statements, and will immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such registration nonetheless shall count as prospectus may no longer be used due to a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)material misstatement or omission.
Appears in 1 contract
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be 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 (y) use reasonable its best efforts to effect cause such registration statement to become effective (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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration 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 theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that 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 registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 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 requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until fortybe unreasonably withheld. In the event there is one or more co-five (45) days after managers, the commencement first such co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the distribution Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co- managers will be selected by the Holders 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 Registrable same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, however, that if the managing underwriter(s) advises the Requesting Shareholder, the Non- Requesting Shareholder and Vail that, in its judgment, the number of shares proposed to be included in such offering exceeds the largest number of Vail Securities covered by which can be sold without having an adverse effect on such registrationoffering, including the price at which such securities can be sold (the "Marketable Number"), then the Company shall continue total number of shares to be obligated included in such offering shall be limited as follows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the Non-Requesting Shareholder propose to effect a Demand Registration pursuant sell up to this Section 4.2 the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the Registrable relative number of Vail Securities that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause and (ii) second, all the shares of Vail Securities that Vail proposes to sell, which does not exceed the proviso difference, if any, between the Marketable Number and that number of shares which the Requesting Shareholder and the Non-Requesting Shareholder have included pursuant to Section 4.2(a)clauses (i) and (ii) above.
Appears in 1 contract
Sources: Stock Purchase Agreement (New Ralcorp Holdings Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after first anniversary of the Closing Date (as defined in under the Merger Transaction Agreement), the Holders of a majority of Registrable Securities collectively shall have the right to require the Company to file request registration (a Registration Statement registering for sale all or part of their respective Registrable Securities "Demand Registration") under the Securities Act of ------------------- such Holders' Registrable Shares upon the terms and subject to the terms, conditions and limitations set forth herein.
(b) One or more Holders holding in the aggregate at least 50% of the Registrable Shares then outstanding may elect to exercise the right to request a Demand Registration pursuant to this Section 2 by furnishing the Company with written notice thereof (a “"Demand Registration”Notice") by delivering a written request therefor to the Company which sets forth (i) specifying the identity of ------------- each Holder joining in making such Demand Notice and the number of Registrable Securities Shares owned by such Holder, (ii) the number of Registrable Shares requested to be registered and (iii) the proposed method of distribution of such Registrable Shares. Subject in all cases to the terms of this Agreement, the Company shall as soon as practicable, and in any event within either (x) in the case of an offering which is not an Underwritten Offering, 45 days after the date on which the Demand Notice is delivered to the Company or (y) in the case of an Underwritten Offering (either as a result of the requested preference of the initiating Holders or at the Company's election pursuant to Section 2(c)), 90 days after the date on which the Demand Notice is delivered to the Company, file with the Commission and use its commercially reasonable efforts to cause to become effective as promptly as practicable a Registration Statement which shall cover the Registrable Shares specified in the Demand Notice.
(c) Notwithstanding the preference of the initiating Holders as to the method of distribution of any Registrable Shares that may be set forth in a Demand Notice, the Company, in its sole discretion, may determine that the sale of Registrable Shares pursuant to any Demand Registration be pursuant to a firm commitment underwriting (any such proposed manner of sale an "Underwritten ------------ Offering"), the managing underwriter of which shall be a nationally recognized -------- investment banking firm selected by the Holder Representative and reasonably acceptable to the Company. If the lead managing underwriter of any Underwritten Offering determines in good faith that the aggregate number of Registrable Shares to be offered exceeds the number of shares that could be sold without having an adverse effect on such offering (including the price at which the Registrable Shares may be sold), then, the number of Registrable Shares to be offered for the accounts of the Selling Stockholders shall be reduced or limited in proportion to the respective numbers of Registrable Shares requested to be included by such Selling Stockholders to the extent necessary to reduce the total number of shares to be included in such registration offering to the amount recommended by such Holder lead managing underwriter. Any shares of the Series A Common Stock proposed to be offered for the account of the Company or Holderssecurityholders other than the Selling Stockholders shall first be reduced prior to any reduction of Registrable Shares to be offered for the accounts of Selling Stockholders pursuant to the preceding sentence. The Company shall enter into the same underwriting agreement as shall the Selling Stockholders, containing representations, warranties, indemnities, and agreements reasonably acceptable to the Company and substantially similar to those customarily made by an issuer in underwriting agreements with respect to secondary distributions.
(d) The Company shall be entitled to postpone, for a reasonable period of time not in excess of 90 days the date by which it is required to file such Registration Statement pursuant to Section 2(b), if (i) at any time prior to the filing of such Registration Statement the Company determines, in its reasonable business judgment, that such registration and offering is reasonably likely to (A) materially interfere with or otherwise materially adversely affect any financing, acquisition, material transaction relating to the capital stock of the Company, or other material transaction or development involving the Company or any of its Affiliates, (B) require the disclosure of any material non-public information that the Company has a reasonable business purpose for not disclosing at such time or (C) require the Company to prepare and file with the Commission sooner than otherwise would be required pro forma or other financial statements relating to any proposed transaction and (ii) specifying whether the intended method Company gives the Holder Representative written notice of disposition thereof is pursuant such postponement. Any such notice need not specify the reasons for such postponement if the Company determines, in its reasonable business judgment, that doing so would materially interfere with or materially adversely affect such transaction or development or would result in the disclosure of such material non-public information. The Company shall not be entitled to an Underwritten Offering postpone the filing of a Registration Statement under this Section 2 for more than 90 days during any 12- month period. In the event of such postponement, the Company shall file such Registration Statement as soon as practicable after it shall determine, in its reasonable business judgment, that such registration and offering will not materially interfere with the financing, acquisition or other material transaction described in clause (as defined belowi) (A) of the first sentence of this Section 2(d) or require the Company to take any of the actions described in clauses (i)(B) or (C) of the first sentence of this Section 2(d). If the Company shall postpone the filing of any Registration Statement, and (iii) containing all information about such Holder required Selling Stockholders holding in the aggregate 50% or more of the Registrable Shares requested to be included in such Registration Statement in accordance with applicable law. As soon as practicable after shall have the receipt of right to withdraw their request for such demand, registration by giving notice to the Company within 15 days of the notice of postponement. Such withdrawal request shall be deemed to apply to all Selling Stockholders who hold Registrable Shares that had been requested to be included in such Registration Statement. In the event that the Selling Stockholders withdraw their request in the foregoing manner, such request shall not be counted for purposes of determining the number of registrations to which Holders are entitled pursuant to Section 3(a)(i) or Section 3(a)(ii) hereof.
(xe) promptly notify Each Selling Stockholder may, before any underwriting agreement relating to such Selling Stockholder's Registrable Shares is signed or before any Registration Statement becomes effective, withdraw its Registrable Shares from inclusion therein, should the terms of sale not be satisfactory to such Selling Stockholder. If Selling Stockholders holding in the aggregate 50% or more of the Registrable Shares requested to be included in such Registration Statement so withdraw, however, such registration shall be deemed to have occurred for the purposes of Section 3(a)(i) and Section 3(a)(ii) hereof, unless the Selling Stockholders pay (pro rata, in proportion to the number of Registrable Shares requested to be included or in such other proportions as they may agree among themselves) within 20 days after any such withdrawal, all Holders from whom of the request for registration has not been received and (y) use reasonable best efforts out-of-pocket expenses of the Company payable to effect third parties incurred in connection with 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 regulationsincluding those specified in Section 5(a) of the Registrable Securities that the Company has been so requested to registerhereof); provided, however, that (i) the Holders such registration shall not make a request be deemed to have -------- ------- occurred for a Demand Registration under this the purposes of Section 4.2(a3(a)(i) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000and 3(a)(ii) hereof, (ii) the Holders will and such Selling Stockholders shall not be entitled required to require pay 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 expenses of the Company) if (x)(1) at the time of such withdrawal, which approval shall not be unreasonably withheld the Selling Stockholders have learned of a material adverse change in the condition or delayed and (ii) business of the Company shall (together with which was not known to 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 Selling Stockholders at the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially time 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 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 Demand Notice was delivered 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 Selling Stockholders holding more than 50% of the number of Registrable Securities Shares for which registration was requested to be included therein by each have withdrawn their request for registration within 10 days after learning of such Holder. No material adverse change or (y) the underwriters limit the number of 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 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 75% of the Registrable Securities requested to be included in an Underwritten Offering hereof so that less than 50% of the number of Registrable Shares for which registration was requested by the Holders Selling Stockholders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Liberty Digital Inc)
Demand Registration. (a) Subject to the provisions hereof▇▇▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (▇), (▇▇), (▇▇▇), (▇▇), (▇) and (vi) of this Section 2(a) and at any time on or after beginning at the earliest of (i) the death of Significant Shareholder I Individual, (ii) the date that is 180 days after on which the Investor receives a Significant Shareholder Ownership Change Notice or (iii) the third anniversary of the Closing Date (as defined in the Merger Agreement)Date, the Holders holders of record of at least a majority of the total number of outstanding Registrable Securities (the "Requesting Holders") shall have the right to require request that the Company to file effect a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (Acts with respect to all or a “Demand Registration”) portion of the Registrable Securities held by such Requesting Holders by delivering a written notice executed by each Requesting Holder to the principal business office of the Company in accordance with this Section 2 (a "Demand Registration"). The request therefor shall identify each such Requesting Holder, specify the number of Registrable Securities each Requesting Holder proposes to be included in such Demand Registration, the intended method of distribution and the jurisdictions where Registration is to be effected, provided that the Company shall not be required to effect a Registration in any jurisdiction where it has not previously made a Registration of Class A Shares. The Company shall (x) promptly give notice of such request for a Demand Registration to each holder of record of Registrable Securities that is not a Requesting Holder and (y) use its commercially reasonable efforts to effect a Demand Registration on an appropriate form under the appropriate Securities Acts for the Registrable Securities which the Company has been so requested to Register by the Requesting Holders, and by each other holder of record of Registrable Securities that shall have made a written request to the Company (i) specifying for inclusion in the Demand Registration within 30 Business Days after the giving of such written notice by the Company, which request shall specify the number and intended method of disposition (including the relevant jurisdictions of sale) of Registrable Securities (collectively, the "Demand Securities"); provided, however, that the Company shall not be obligated to effect any Demand Registration except in accordance with the following provisions: the Company shall not be obligated to file more than two Registration Statements in total pursuant to this Section 2, subject to paragraph (d) below; the Company shall not be obligated to file any Registration Statement pursuant to this Section 2 unless the request from the applicable holder(s) for such Registration cover Registrable Securities whose aggregate net proceeds of the Registrable Securities proposed to be sold is not less than $10,000,000; the Company shall (A) not be obligated to file any Registration Statement during any period in which any other Registration Statement (other than on Form S-4 or Form S-8 promulgated under the U.S. Securities Act or any successor forms thereto) pursuant to which Registrable Securities are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 30 days and (B) promptly give written notice to the Requesting Holders of a delay in filing a Registration Statement to effect a Demand Registration pursuant to clause (A) of this Section 2(a)(iii); the Company shall not be obligated to file any Registration Statement if the Company has determined in good faith that such filing of a Registration Statement would require the disclosure of material information that the Company has a reasonable justification for keeping confidential, such filing to be delayed until the date which is not more than 60 days after such request for Registration pursuant to this Section 2(a), provided, that the Company may only so delay the filing or effectiveness of a Registration Statement pursuant to this Section 2(a)(iv) on one occasion during any twelve-month period; the Company shall not be required to file any Registration Statement if the written request therefor is not received by the Company prior to the tenth anniversary of the Closing Date; and the Company may, on its own behalf and on the behalf of its security holders, include Other Shares in such Demand Registration. If such Demand Registration is an underwritten offering and the managing underwriter advises the Company that the inclusion of all Demand Securities and all Other Shares, if any, proposed to be included in such Demand Registration would interfere with the successful marketing (including pricing) of all such securities, then the Company shall include in such Demand Registration, to the extent of the number which the Company is so advised can be sold in such offering: first, Demand Securities; and second, all Other Shares the Company proposes to sell or other holders propose to sell pursuant to their contractual or incidental piggyback rights, subject to the priority structure set forth in the applicable agreements establishing such rights. The Requesting Holders may, in the notice delivered pursuant to paragraph 2(a) above, elect that such Demand Registration be an underwritten offering. Upon such election by the Requesting Holders (or, in the event the Requesting Holders do not so elect, if the Company elects an underwritten offering), the Company shall have the right to select the managing underwriter(s) subject to the consent of the Requesting Holders (which consent shall not be unreasonably withheld) and, in such case, the Company shall not be required to include the Registrable Securities of a Selling Holder in the underwritten offering unless such Selling Holder (and, if requested by the Company, the applicable beneficial holder if different than the Selling Holder) accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company. A request for a Demand Registration may be withdrawn by written notice to the Company by the holders of a majority of the Registrable Securities to be included in such registration by Registration with the following consequences: if such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this is withdrawn prior to the filing date of the Registration Statement, such withdrawn Registration shall count as a Demand Registration for purposes of Section 4.2(a2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) unless the Holders will not be entitled to require participating holders have promptly reimbursed the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, for any and (iii) all reasonable and documented out-of-pocket fees and expenses incurred by the Company will not be obligated to effect more than one (1) in connection with the preparation of such Registration Statement for filing; or if such request for a Demand Registration in any six (6) month period.
(b) The offering is withdrawn after the Filing Date of the Registrable Securities pursuant Registration Statement but prior 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 Offeringits Effective Date, subject to the approval Section 2(d), such withdrawn Demand Registration shall count as a Demand Registration for purposes 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 Section 2(a). Except as set forth provided 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 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 with2(c), 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 Demand Registration pursuant 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 (bSection 2(a) shall not in any eventcount as a Demand Registration for purposes of Section 2(a) unless it has become effective, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (provided that: a Registration Statement which does not become effective 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted it has been filed by the Company on its own behalf or on behalf solely by reason 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 securities proposed refusal to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company proceed by a Selling Holder 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 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 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 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, Company at least 75% the request of the Registrable Securities requested to be included in the registration 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 theretoSelling Holders; provided, however, that if, or if after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder has become effective it is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Commissions for any reason other than a misrepresentation or an omission by a Selling Holder and, as a result thereof, the Demand Securities pursuant to cannot be completely distributed in accordance with the registration, and plan of distribution set forth in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the related Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will Registration Statement shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed and shall not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso Section 2(a). Any Registration requested pursuant to Section 4.2(a3 shall be deemed not to have been requested pursuant to Section 2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Fahnestock Viner Holdings Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after following the Closing Date (and so many times as defined in may be required for the Merger Agreement)disposition of all Registrable Securities, each of TDR and the Initiating Holders of may give a majority of Registrable Securities shall have the right written request to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a of all or any portion of such Holder’s Registrable Securities, which written request therefor to the Company (i) specifying shall specify the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether registered and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best efforts to effect each 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 Company has been so requested shall be referred to register; provided, however, that (i) the Holders shall not make herein as 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 OfferingRegistration”). 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 Offeringthat, 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 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of2.1(d), 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect any Demand Registration (w) with respect to Registrable Securities that are subject to transfer restrictions pursuant to the Subscription Agreement, (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 participate (asuch shorter period as the Company may determine in its sole discretion) more than two (2) Underwritten Offerings in any twelve (12) month periodpursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and (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 securities proposed to be included in such registration exceeds the 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 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 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 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, actually sold at least 75% of the Registrable Securities requested to be included therein or (z) as provided in Section 2.1(f). 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 reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of:
(i) all Registrable Securities for which any 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 Holders are 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 the 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, such registration shall occur on such form.
(b) 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 registrationRegistration Statement.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A Demand Registration shall not be deemed to have 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 Company has complied Holders included in all material respects with its obligations under this Agreement such registration have actually been sold thereunder) or (y) with respect theretoto a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided, however, provided that such Registration Statement shall not be considered a Demand Registration if, after it has become such Registration Statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registrationRegistration Statement have been sold thereunder; or
(ii) if the 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 Shelf Registration any securities that are not Registrable Securities without the prior written consent of the selling Holders. In circumstances not including If a Demand Registration involves a Public Offering and the events described lead managing underwriter advises the Company and the selling Holders that, in its view, the immediately two preceding sentences number of this Section 4.2(d), each Holder shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material and adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall be permitted voluntarily include in such registration, up to withdraw the Maximum Offering Size, first, all or any part of its Registrable Securities from 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 second, any securities proposed to be registered by the Company.
(f) The Company may postpone for up to 60 days (i) the filing or effectiveness of a Registration Statement for a Demand Registration at any time prior to or Shelf Registration or (ii) the commencement of marketing a Shelf Public Offering if the Board of Directors of the Company determines in its reasonable good faith judgment that such Demand Registration, provided Shelf Registration or Shelf Public Offering, as applicable, (i) materially interferes with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) requires premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) renders the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such registration nonetheless event TDR or the Initiating Holders, as applicable, shall count as be entitled to withdraw such request and, if such request for a Demand Registration for purposes of clause (ii) is withdrawn, such Demand Registration shall not count as one of the proviso to Section 4.2(a)permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration, Shelf Registration or Shelf Public Offering hereunder only twice in any period of twelve (12) consecutive months.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 publication by the Parent of financial results covering at least 30 days after of post Merger combined operations, upon written notice from the Closing Date Representatives (as defined hereinafter defined) in the Merger Agreement), manner set forth in Section 11(h) hereof requesting that the Holders of a majority of Registrable Securities shall have Parent effect the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any or all of the Registrable Securities, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Parent shall use its reasonable best efforts to effect, in the Company manner set forth in Section 5, the registration under the Securities Act of all of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, provided that: (i) specifying 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 Holder requesting registration) by the lead underwriter of the proposed offering described below that, in 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 which Parent was In Registration prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) 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 pending 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 may be, and (2) 90 days after Parent makes such good-faith determination; (iii) Parent shall not be obligated to 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 to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price then market value of less than $5,000,000, 150 million or (iiB) more than 36 months have elapsed since the Holders will not be entitled to require Effective Time; (iv) at least four months have elapsed since the Company to effect last request made by the Representatives on behalf of any Holders; and (v) no more than three (3) Demand Registrations in the aggregate demands under this Agreement, and (iii) the Company will not Section 2 shall be obligated required to effect more than one (1) Demand Registration in any six (6) month periodbe honored.
(b) The offering Notwithstanding any other provision of this Agreement to the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, contrary: (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 4.9 of this Agreement; 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 requested 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 a 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 questionnairesthis Section 2, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration (and, therefore, not requested for purposes of subsection 2(a)), (A) unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the registration statement filed with respect to such Holder's Registrable Securities requested to be included in the registration 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; provided, however, that if, become effective or (B) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationas a result thereof, and in each case less than all of the Registrable Securities covered requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (other than by reason of an act or omission by such Holder) or waived by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or underwriters; and (ii) if, in a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the case request of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will Holder shall be deemed not to have been effected (and, therefore, requested for purposes of clause (ii) Section 2(a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, unless such request is withdrawn by a Holder prior to the proviso to Section 4.2(a). If (i) filing of a registration requested statement with the SEC; and (c) In the event that any registration pursuant to this Section 4.2 is deemed not 2 shall involve, in whole or in part, an underwritten offering, a Holder shall have the right to have been effected designate an underwriter reasonably satisfactory to Parent as a Demand Registration or (ii) co-manager of such underwritten offering and Parent shall have the registration requested pursuant right to this Section 4.2 does not remain continuously effective until forty-five (45) days after designate the commencement of lead underwriter reasonably satisfactory to the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)underwritten offering.
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereof, at any time on or after the date The Stockholder(s) may request 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 to file a Registration Statement registering for sale effect the registration of all or part of their respective the Registrable Securities under owned by the Securities Act (a “Demand Registration”Stockholder(s) by delivering a written request therefor notice to the Company (isigned by the requesting Stockholder(s) specifying requesting such registration and describing the number intended manner and timing of the sale of such Registrable Securities to be included in reasonable detail: provided that no Stockholder may make such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell if its Registrable Securities on are then included in the basis provided in such underwriting agreement Shelf Registration, and completes and executes all questionnairesprovided, powers of attorneyfurther, indemnities and other documents reasonably required under that the terms of such underwriting agreement. The Company shall Stockholder(s) may not be obligated to effect or participate (a) make more than two (2) Underwritten Offerings such requests in the aggregate and no such request may be made within nine (9) months of any other request.
(ii) Upon receipt of any request pursuant to Section 4(a)(i) hereof, the Company will notify each Stockholder who did not sign the request described in Section 4(a)(i) hereof and each such other Stockholder shall be entitled to join in the request by providing written notice thereof to the Company within ten (10) days after the delivery of such notice by the Company.
(iii) Subject to the provisions of Section 6(b) hereof, the Company shall use its commercially reasonable efforts to file, as expeditiously as possible, but in any twelve event no later than seventy-five (1275) month perioddays after the delivery of the request to the Company pursuant to Section 4(a)(i) hereof, a Registration Statement on an appropriate Form covering all Registrable Securities so requested to be included therein (the "Demand Registration"), provided that the Company shall have no obligation to file any such registration statement if the then market value of the Registrable Securities to be included therein is less than $500,000 in the aggregate.
(iv) Subject to the provisions of Section 6(b) hereof, the Company agrees to use its commercially reasonable efforts to (A) cause the Registration Statement relating to the Demand Registration to become effective as promptly as practicable, and (by) in any Underwritten Offering during any lock-up period required by subject to the underwriter(ssecond sentence of Section 5(b) in any prior underwritten offering conducted by the Company on its own behalf or on behalf hereof and clauses (2) and (3) of the Holderslast sentence of Section 6(b) hereof, keep such Registration Statement effective for the period (the "Demand Registration Period") ending in the earlier of sixty (60) days and the date on which all Registrable Securities covered by such Registration Statement have been sold and the distribution contemplated thereby has been completed.
(cv) If, The Company and any Other Holder may include securities in connection with an Underwritten Offeringthe Demand Registration effected pursuant to this Section 4(a); provided, the managing underwriter(sStockholder(s) advise shall have priority sale rights over the Company that in its or their reasonable opinion the number of securities proposed and such Other Holders with respect to all Registrable Securities requested by them to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Internet Commerce Corp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or On and after the date that is 180 days after end of the Closing Date (as defined in the Merger Agreement)Earn Out Period, the Holders of Stockholders’ Representative may in his sole and absolute discretion request in a majority of Registrable Securities shall have the right to require written notice that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (or a “Demand Registration”) by delivering a written request therefor similar document pursuant to any other statute then in effect corresponding to the Company (iSecurities Act) specifying covering the number registration of any or all Registrable Securities to Stock held by the Stockholders; provided, that there must be included in such registration Registrable Stock having a minimum value of Ten Million Dollars ($10,000,000) (based on the then current market price of such Registrable Stock) or such lesser amount if it constitutes all of the Registrable Stock held by such Holder Shareholders participating in the registration (the “ Registration Threshold ”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or Holderssuch 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 (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below$5,000,000), and if the Company is not eligible to register the sale or other disposition of Registrable Securities on Form S-3 (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawor a successor form). As soon as practicable after the Following receipt of such demandany notice under this Section 5.1, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best 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 cause to be registered under the Securities Act and any other governmental requirements or regulations) of the all Registrable Securities Stock that the Company has been so Stockholders have requested be registered in a manner of disposition reasonably acceptable to register; providedthe Company, howeverincluding but not limited to, that an offering on a delayed or continuous basis pursuant to Rule 415 (ior any successor rule) under the Holders shall not make 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 periodAct.
(b) The offering of If the Company intends to have the Registrable Securities pursuant to such Demand Registration may be in the form Stock distributed by means 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 Stockholders 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 underwriter or underwriters. If any Stockholder who intends to 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(sunderwriter. The underwriters shall be selected by the Company in its sole discretion.
(c) proposing Notwithstanding any provision of this Agreement to distribute their the contrary,
(i) the Company shall not be required to effect a registration pursuant to this Section 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 through such Underwritten Offeringfor 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 in the best interests of the Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition, which underwriting agreement shall have indemnification provisions in substantially disposition, strategic alliance or financing transaction or other potential material event involving the form as Company or (B) to suspend the registration rights set forth in herein, the Company may (1) postpone the filing of any registration pursuant to this Section 4.9 5.1 and (2) suspend the rights of this Agreementany Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that (i) such periods of postponement and suspension may not exceed 120 days in the representations aggregate during any period of 12 consecutive months; and warranties by, and each Stockholder agrees in consideration of the other agreements 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 part ofsafe 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 to and for shall extend 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 period during which such registration statement shall be required to make any representations and warranties to, or agreements with, any underwriter maintained effective as provided in a Section 5.3(a) by the number of days by which the Company suspends such registration other than customary representations, warranties and agreements and statement; and
(iii) the liability of each Holder Company shall not be required to effect a registration pursuant to this Section 5.1 more than one time in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) twelve-month period and shall not be limited obligated to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made cause any audit to be undertaken in such Registration Statement, connection with 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 registration that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall is not otherwise required to undertake at that time 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. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell connection with 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 obligations under the terms of such underwriting agreement. Securities Act, the Exchange Act and the rules and regulations thereunder.
(d) The Company shall not be obligated to effect or participate (a) and pay for more than two (2) Underwritten Offerings in any twelve (12) month periodthree registrations pursuant to this Section 5.1; provided, and (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 securities proposed a registration requested pursuant to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company this Section 5.1 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 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 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 will not be deemed to have been effected as a Demand Registration for purposes of this Section 5.1(d) unless the Registration Statement relating thereto (i) it has been declared effective by the SECCommission, at least 75% of (ii) it has remained effective for the Registrable Securities requested to be included period set forth in the registration by the Holders are included in such registrationSection 5.3(a), and (iii) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder Stock pursuant to such registration is or becomes the not subject of to any stop order, injunction or other order or requirement of the SEC or Commission (other than any other governmental or administrative agencysuch stop order, injunction, or if any court prevents or otherwise limits the sale other requirement of the Registrable Securities pursuant to the registration, and in each case less than all Commission prompted by any act or omission of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder holders of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aStock).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Demand Commencement Date, the Holders Corporation receives a written request by the Stockholders holding at least 51% of a majority of the aggregate Registrable Securities shall have held by all Stockholders (any such requesting Persons, "SELLING STOCKHOLDERS") that the right to require Corporation effect the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to of at least 51% of the Company (i) specifying the number of aggregate Registrable Securities to be included in such registration held by such Holder or Holdersall Stockholders, (ii) and specifying whether the intended method of disposition thereof is pursuant thereof, then the Corporation shall promptly give written notice of such requested registration (a "DEMAND REGISTRATION") at least 10 days prior to an Underwritten Offering the anticipated filing date of the registration statement relating to such Demand Registration to all other Stockholders and thereupon will use its reasonable best efforts to effect, as expeditiously as possible, the registration under the Securities Act of:
(as defined below), and i) the Registrable Securities then held by all Stockholders;
(ii) the Common Stock proposed to be issued by the Corporation; and
(iii) containing all information about such Holder required other Common Stock which any other stockholder, who is entitled to request to be included in any registration by the Corporation of Common Stock (all such Registration Statement stockholders, together with the Selling Stockholders, the "HOLDERS"), has requested the Corporation to register in accordance with applicable law. As soon the agreement pursuant to which such stockholder has such rights, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof 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 (y) use reasonable best 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 regulationsaforesaid) of the Registrable Securities that so to be registered; provided that, subject to Section 5.02(d), the Company has been so requested to register; provided, however, that (i) the Holders Corporation shall not make 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 (i) more than one two Demand Registrations under this Article 5, (1ii) a Demand Registration within 12 calendar months after a previous Demand Registration or (iii) with respect to any registration statement filed, or to be filed, pursuant to this Section, if the Corporation shall furnish to the Stockholders of Registrable Securities that have made such request a written notice stating that maintaining the effectiveness or commencing a filing of a registration statement would (because of the existence of, or in anticipation of, any six acquisition or other material event or transaction the public disclosure of which at the time would be materially prejudicial to the Corporation) be significantly disadvantageous (6a "DISADVANTAGEOUS CONDITION") month periodto the Corporation, the Corporation shall be entitled to cause such registration statement to be withdrawn and the effectiveness of such registration statement terminated, or, in the event no registration statement has yet been filed, shall be entitled not to file any such registration statement, until such Disadvantageous Condition no longer exists (written notice of which the Corporation shall promptly deliver to such Stockholders). Upon receipt of any such certification of a Disadvantageous Condition, such Stockholders shall forthwith discontinue use of the prospectus contained in such registration statement and, if so directed by the Corporation, each such Stockholder will deliver to the Corporation all copies, other than permanent file copies then in such Stockholder's possession, of the prospectus then covering such Registrable Securities current at the time of receipt of such notice. If so requested by the requesting Stockholders, the Corporation shall, if any registration statement shall have been withdrawn, at such time as it is possible or, if earlier, at the end of a 120-day period following such withdrawal, file a new registration statement covering the Registrable Securities that were covered by such withdrawn registration and maintain the effectiveness thereof for such time as is required under this Agreement.
(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 Corporation will notify as soon as practicable all 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 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other 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 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 number of Registrable Securities requested to be included therein therein. The Selling Stockholders requesting a registration under this Section 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 each providing a written notice to the Corporation revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without unless the prior written consent of participating Stockholders reimburse the holders of a majority Corporation for all costs incurred by the Corporation in interest of the Registrable Securitiesconnection with such registration.
(c) The Corporation will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section shall not be deemed to have been effected as unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Selling Stockholders included in such registration have actually been sold thereunder).
(e) If a Demand Registration unless involves a Public Offering and the Registration Statement relating thereto has been declared effective by managing underwriter shall advise the SECCorporation and the Selling Stockholders that, at least 75% in its view, (i) the number of the Registrable Securities requested to be included in such registration (including any securities which the registration by Corporation proposes to be included which are not Registrable Securities) or (ii) 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; provided, however, that if, after it has become effective, (i) such Registration Statement inclusion of some or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered owned by the effective Registration Statement are actually Holders, in any such case, exceeds the largest number of securities which can be sold by without having an adverse effect on such offering, including the selling Holder or Holders pursuant to price at which such securities can be sold (the Registration Statement"MAXIMUM OFFERING SIZE"), or (ii) ifthe Corporation will include in such registration, in the case of an Underwritten Offeringpriority listed below, up to the Maximum Offering Size:
(A) First, the Company fails to provide Full CooperationCommon Stock held by the Stockholders (allocated, then such registration will be deemed if necessary for the offering not to have been effected for purposes of clause (ii) exceed the Maximum Offering Size, pro rata to such Stockholders on the basis of the proviso number of Common Stock, on a Fully Diluted basis, held by each such Stockholder);
(B) Second, the Common Stock to Section 4.2(a). If be issued by the Corporation in an amount that does not cause the offering to exceed the Maximum Offering Size; and
(iC) a registration requested pursuant to this Section 4.2 is deemed Third, the Common Stock held by the other stockholders (allocated, if necessary for the offering not to have been effected exceed the Maximum Offering Size, as a Demand Registration or (ii) agreed between the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by Corporation and such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aother stockholders).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined date upon which the Registration Statement for use in the Merger Agreement), the Holders of a majority of Registrable Securities Initial Public Offering shall have the right to require been declared effective, if the Company shall be requested by the holders of at least (i) 5.0% of the then outstanding Common Stock or (ii) $5,000,000 of Restricted Securities proposed to file a Registration Statement registering for sale all or part of their respective Registrable Securities be sold in the registration (based on the proposed offering price thereof) to effect the registration under the Securities Act (a “Demand Registration”) by delivering a of Registrable Shares, it shall within 10 days of such request give written request therefor notice to the other Investors of its requirement to so register such Registrable Shares and, upon the written request, delivered to the Company within 30 days after delivery of any such notice by the Company, of the other Investors to include in such registration Registrable Shares (i) specifying which request shall specify the number of Registrable Securities Shares proposed to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowregistration), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) shall, subject to Section 2(b), promptly notify all Holders from whom the request for registration has not been received and (y) thereafter use commercially reasonable best 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 Shares that the Company has been so requested to register; provided, however, that (i) register for sale in accordance with the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price method 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 distribution specified 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 initiating request. If such method of the Registrable Securities pursuant to such Demand Registration may be in the form of distribution is an underwritten public offering (an “Underwritten Public Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that underwriter for such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringoffering, subject to the approval of those Investors holding a majority of the Company, Registrable Shares requested to be included in such offering (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 4.9 of this Agreement; 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 withheld).
(b) shall not Anything contained in any event, absent fraud or intentional misrepresentation, exceed an amount equal Section 2(a) to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from contrary notwithstanding, the disposition of 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(ai) the Company shall not be obligated to file and cause to become effective (A) more than two one Registration Statement initiated pursuant to Section 2(a) within any one-year period; provided, that if the Investors were unable to sell at least 50% of the Registrable Shares requested to be included in the last registration pursuant to Section 2(a) as a result of an underwriter's cutback, then additional registrations shall be added to this Section 2(b)(i) until the foregoing condition is satisfied; (2B) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering Registration Statement during any lock-up period required by in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the underwriter(sSecurities Act or any successor forms thereto) in pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 180 days or (C) any prior underwritten offering conducted by Registration Statement pursuant to Section 2(a) if the Company on its own behalf or on behalf shall reasonably conclude that the anticipated gross offering price of the Holdersall Registrable Shares to be included therein would be less than $5,000,000.
(cii) Ifthe Company may delay the filing or effectiveness of any Registration Statement for a period of up to 90 days after the date of a request for registration pursuant to Section 2(a) if (A) the Company is engaged, or proposes to engage, in connection a Material Transaction or (B) the Company's Board of Directors has determined that such registration would have a material adverse effect upon the Company or its then current business plans; and
(iii) with an Underwritten Offeringrespect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter(s) advise underwriter advises the Company that in its or their reasonable opinion the number inclusion of securities all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration exceeds would interfere with the Underwriters’ Maximum Numbersuccessful marketing (including pricing) of all such securities, 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 only that number of Registrable Securities requested by the Holders thereof Shares, Primary Shares and Other Shares proposed 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 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 following order (subject to any senior registration rights applicable to Other Shares):
(A) first, the Registrable SecuritiesShares held by the Investors requesting that their Registrable Shares be included in such registration pursuant to Section 2(a), pro rata based upon the number of Restricted Securities owned by each such Investor at the time of such registration; provided, that if the managing underwriter advises the Company that the pro rata inclusion of Registrable Shares held by all Investors would interfere with the successful marketing (including pricing) of such securities, then the managing underwriter may reduce that percentage of Registrable Shares held by Investors that may be included pro rata in the proposed registration;
(B) second, the Primary Shares; and
(C) third, the Other Shares.
(dc) A requested registration will not under this Section 2 may be deemed rescinded prior to have been effected as a Demand Registration unless the Registration Statement relating thereto has been such registration being declared effective by the SEC, at least 75% of the Registrable Securities requested Commission by written notice to be included in the registration 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 theretofrom those Investors who initiated the request; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such rescinded registration will be deemed shall not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) count as a registration requested initiated pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then 2 if the Company shall continue have been reimbursed (pro rata by the Investors requesting registration or in such other proportion as they may agree) for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration; provided further, that such Investors shall not be required to be obligated to reimburse the Company if such rescission shall have been caused by, or made in response to, the material adverse effect a Demand Registration pursuant to this Section 4.2 of an event on the business, prospects, properties, condition (financial or otherwise) or operations of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on during such periods as are provided for in the Lock-Up Agreement or after as are agreed by the date Issuer (the “Demand Request”) requesting that is 180 the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 30 days after such request, file with the Closing Date Commission a registration statement with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to be declared effective under the 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:
(as defined in the Merger Agreement), i) the Holders of a majority of Registrable Securities shall have the right may collectively exercise their rights to require the Company request registration under this Section 2.01(a) on not more than two occasions (each such registration being referred to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (herein as a “Demand Registration”);
(ii) by delivering a written request therefor the Issuer shall not be required to effect the Company (i) specifying Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 1,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer’s written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) any Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision 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 this Agreement to the approval of the Companycontrary, 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECeffected, at least 75% of the Registrable Securities and, therefore, not requested to be included in the registration 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; provided, however, that if, after it has become effectiverights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration Statement has not become effective under the 1933 Act or (ii) if such Demand Registration, after it became effective under the related offer1933 Act, sale or distribution of Registrable Securities thereunder is or becomes was not maintained effective under the subject 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for 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 be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the periods referred to in Section 2.01(a), the Holders shall not lose their right to their Demand Registration under Section 2.01 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer (but not for the account of stockholders other than Holders) in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits managing underwriter referred to in Section 2.03(b) that, in such underwriter’s good faith view, the number of shares of such Registrable Securities and additional equity securities exceeds the largest number of shares that can be sold in such registration without having an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated (or that the inclusion of shares for the account of the Issuer would, in such underwriter’s good faith view, have such an adverse effect), then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering (the “Maximum Offering Size”) shall be allocated in the following priority:
(i) first, so much of the Issuer Securities proposed to be registered for the account of the Holders as would not cause the offering to exceed the Maximum Offering Size (to be allocated among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each); and
(ii) second, all Registrable Securities requested to be included in such registration for the account of the Issuer; provided that the Issuer may not include securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 2.01(d), elect to so include Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder.
(e) If the Issuer invokes a Market Interfering Delay during the Subsequent Period, the Issuer shall give prompt notice at least 30 days prior to the anticipated filing date of the registration statement relating to the registration which is deemed the subject of such Market Interfering Delay, to each Holder, which notice shall set forth such Holder’s rights under this Section 2.01(e) and shall offer such Holder the opportunity to include in such registration statement such number of Registrable Securities as the Holders so desire but not to have been effected as a Demand Registration or exceed up to 50% of the Registrable Securities then held by all such Holders. Upon the request of any such Holder made within 20 days after the receipt of notice from the Issuer (ii) which request shall specify the number of Registrable Securities intended to be registered by such Holder), the Issuer shall use its commercially reasonable efforts to effect the registration under the 1933 Act of all Registrable Securities that the Issuer has been so requested to register by all such Holders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered, provided that if, at any time after giving notice of its intention to register any Issuer Securities pursuant to this Section 4.2 does not remain continuously 2.01(e) and prior to the effective until forty-five (45) days after the commencement date of the distribution by the Holders of the Registrable Securities covered by registration statement filed in connection with such registration, then the Company Issuer shall continue determine for any reason not to register the securities to be obligated offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to effect a Demand Registration pursuant all such Holders and, thereupon, shall be relieved of its obligation to this Section 4.2 of the register any Registrable Securities included in connection with such registration. In circumstances not including the events described in the immediately two preceding sentences of No registration effected under this Section 4.2(d)2.01(e) shall relieve the Issuer of its obligations to effect any Demand Registration to the extent required by this Agreement. The Issuer shall pay all Registration Expenses in connection with such registration during the Subsequent Period. Notwithstanding the foregoing, each Holder the Issuer shall not be entitled to both a Disadvantageous Condition Delay and a Market Interfering Delay during the Subsequent Period and is entitled to only one Market Interfering Delay during the Subsequent Period in any event. Furthermore, the duration of Registrable Securities the Subsequent Period shall be permitted voluntarily to withdraw all or any part extended by the number of its Registrable Securities from a Demand Registration at any time prior days equal to the commencement period of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of any Disadvantageous Condition Delay occurring during the proviso to Section 4.2(a)Subsequent Period.
Appears in 1 contract
Sources: Registration Rights Agreement (Credence Systems Corp)
Demand Registration. (a) Subject 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 provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right 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 require 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 the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make 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, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated 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 effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so 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 4.9 of this Agreementregistered; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement relating to any registration request under this Section 2(a) (A) unless the aggregate requests by the Holder or participate Holders for such registration cover not less than 5.0% of the outstanding Common Stock, (aB) with respect to more than two an aggregate of 3 registrations (2which shall be increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration statement) Underwritten Offerings in under this Section 2(a), (C) within a period of 180 days after the effective date of any twelve other registration statement relating to any registration request under this Section 2(a), or (12D) month periodif with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and (b) in any Underwritten Offering during any lock-up period required by regulations thereunder, or the underwriter(s) in any prior underwritten offering form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company on at the end of its own behalf or on behalf fiscal year, in which case the filing may be delayed until the completion of such regular audit (unless the Holders requesting such registration agree to pay the expenses of the Holders.
(c) If, Company in connection with such an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the 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 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 number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person audit 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aregular audit).
Appears in 1 contract
Sources: Registration Rights Agreement (Provantage Health Services Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after following the Closing Date (and as defined in many times as may be required for the Merger Agreement)disposition of all Registrable Securities, any of the Initiating Holders of may give a majority of Registrable Securities shall have the right written request to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a of all or any portion of such Holder’s Registrable Securities, which written request therefor to the Company (i) specifying shall specify the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether registered and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best efforts to effect each 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 Company has been so requested shall be referred to register; provided, however, that (i) the Holders shall not make herein as 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 OfferingRegistration”). 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 Offeringthat, 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 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of2.1(d), 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. 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 terms of such underwriting agreement. 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 participate (asuch shorter period as the Company may determine in its sole discretion) more than two (2) Underwritten Offerings in any twelve (12) month periodpursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and (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 securities proposed to be included in such registration exceeds the 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 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 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 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, 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 Holders are 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 the 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, such registration shall occur on such form.
(b) 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 registrationRegistration Statement.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A Demand Registration shall not be deemed to have 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 Company has complied Holders included in all material respects with its obligations under this Agreement such registration have actually been sold thereunder) or (y) with respect theretoto a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided, however, provided that such Registration Statement shall not be considered a Demand Registration if, after it has become such Registration Statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registrationRegistration Statement have been sold thereunder; or
(ii) if the 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 Shelf Registration any securities that are not Registrable Securities without the prior written consent of the selling Holders. In circumstances not including If a Demand Registration involves a Public Offering and the events described lead managing underwriter advises the Company and the selling Holders that, in its view, the immediately two preceding sentences number of this Section 4.2(d), each Holder shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material and adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall be permitted voluntarily include in such registration, up to withdraw the Maximum Offering Size, first, all or any part of its Registrable Securities from a Demand Registration at 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 second, any time prior securities proposed to be registered by the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Target Hospitality Corp.)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after the date that is 180 days after the Closing Date Purchaser shall request (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require "DEMAND") the Company in writing to file a Registration Statement registering for sale all or part of their respective Registrable Securities register under the Securities Act of 1933, as amended (a “Demand Registration”) by delivering a written request therefor to the "SECURITIES ACT"), any shares of the Common Stock of the Company (ithe "COMMON STOCK") specifying acquired by the number Purchaser upon exercise of Registrable Securities either of the Warrants (the shares of Common Stock so acquired and subject to be included in such registration by such Holder or Holders, (ii) specifying whether request being herein referred to as the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below"SUBJECT STOCK"), and (iii) containing all information about such Holder required to be 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 (y) use reasonable its best efforts to effect cause the shares of Subject Stock specified in such request to be registered as soon as reasonably practicable so as to permit the sale thereof, and in connection therewith shall prepare and file a Form S-3 registration statement (including, without limitation, appropriate qualification under applicable blue sky or similar form which may be promulgated in the future) or such other state securities laws form as to which the Company is eligible to file with the Securities and appropriate compliance with applicable regulations issued Exchange Commission (the "SEC") under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registereffect such registration; provided, however, that such request shall (i) specify the number of shares of Subject Stock intended to be offered and sold, which number of shares shall represent Subject Stock with an aggregate market value of at least $500,000, based on the average closing sale price of the Common Stock for the ten (10) trading days preceding the date prior to the date of the Purchaser's request first received by the Company, (ii) express the present intention of the Purchaser to offer or cause the offering of such shares of Subject Stock for distribution, (iii) describe the nature or method of the proposed offer and sale thereof, and (iv) contain the undertaking of the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such registration statement.
(b) Notwithstanding the foregoing and Section 4 hereof, upon delivery to the Purchaser of a written notice, the Company shall be entitled to postpone filing of the registration statement, and may withhold efforts to cause the registration statement to become effective, for a reasonable period of time (not to exceed ninety (90) days) if (i) the Holders Company is contemplating filing a registration statement within ninety (90) days of such request for registration (which shall not make a request for a Demand Registration affect the Purchaser's other rights hereunder, including without limitation the Purchaser's rights under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0003 below), (ii) the Holders will not be entitled to require Company determines in good faith that such registration might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to effect more than three (3undertake such transaction) Demand Registrations in at the aggregate under this Agreementtime the right to delay is exercised, and or (iii) the Company will determines in good faith that such registration might involve initial or continuing disclosure obligations that might not be obligated in the best interests of the Company or its shareholders. The Company shall not be required 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 4.9 of demand registration statement under this Agreement; provided, however, that if any postponement pursuant to the preceding sentence extends beyond the date on which the Warrants expire, the obligations of the Company hereunder shall be extended by a number of days necessary to complete the distribution of securities subject to such postponement. In a case of postponement pursuant to clause (i) of the representations and warranties by, and the other agreements on the part offirst sentence of this paragraph (b), the Company to and request for registration will not constitute a Demand for purposes of determining the benefit number 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 Demands permitted pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering this paragraph 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted contemplated registration by the Company on its own behalf is abandoned or on behalf not consummated within the ninety (90) day period and then the Company successfully registers the shares of Subject Stock pursuant to the HoldersDemand.
(c) If, in connection with an Underwritten Offeringafter a registration statement becomes effective, the managing underwriter(s) advise Company advises the Purchaser that the Company considers it appropriate for the registration statement to be amended, the Purchaser shall suspend any further sales of the registered shares until the Company advises the Purchaser that the registration statement has been amended. The ninety (90) day time period referred to in Section 4 hereof during which the registration statement must be kept current after its or their reasonable opinion effective date shall be extended for an additional number of business days equal to the number of securities proposed business days during which the right to be included in such registration exceeds the 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 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 number of Registrable Securities requested to be included therein by each such Holder. No sell 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities was suspended pursuant to the registrationpreceding sentence, and but in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, no event will the Company fails be required 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) update the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days statement after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences expiration of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 If the Company to file shall receive a Registration Statement registering for sale all written request by the DLJ Entities or part of their respective Registrable Securities Permitted Transferees (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Shareholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "Demand Registration") promptly notify all Holders from whom at least 5 days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the Other Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Selling Shareholders, then held by the Selling Shareholders; provided, however, that (i) the Holders shall not make 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, and
(ii) subject to the Holders will not be restrictions set forth in Section 5.02, all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any Other Shareholder entitled to require request the Company to effect more than three a Piggyback Registration (3as such term is defined in Section 5.02) Demand Registrations in pursuant to Section 5.02 (all such Shareholders, together with the aggregate under this AgreementSelling Shareholders, and (iiithe "Holders") has requested the Company will to register by written request received by the Company within 2 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than one (1) six Demand Registrations for the DLJ Entities; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of DLJMB exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand Registration would constitute the First Public Offering, or (y) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 2-day period referred 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 4.9 of this Agreement; provided, that (i5.01(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other 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 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 number of Registrable Securities requested to be included therein therein. The Selling Shareholders requesting a registration under Section 5.01(a) 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 each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without the prior written consent unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section 5.01 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section 5.01 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (y) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances registration statement has been sold thereunder, such registration statement shall not including be considered a Demand Registration, or (ii) if the events described Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than 66 2/3% of the immediately two preceding sentences Registrable Securities of this Section 4.2(d)the Selling Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, each Holder in its view, (i) the number of shares of Registrable Securities shall requested to be permitted voluntarily included in such registration (including any securities which the Company proposes to withdraw be included which are not Registrable Securities) or (ii) the inclusion of some or all or any part of its the shares of Registrable Securities from a 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 to be registered by the parties requesting such Demand Registration at and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 5.01 on one occasion during any period of six consecutive months for a reasonable time prior specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) 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 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 5.01 of Common Stock, the commencement Other Shareholders, upon request of marketing the Other Shareholders owning a majority of the Shares acquired by the Other Shareholders on Closing Date, may request that the Company register Common Stock which are Registrable Securities then owned by such Other Shareholders. In no event will the Company be required to effect more than one such Demand Registration. The provisions of this Article 5 shall apply, provided that mutatis mutandis, to any such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Registration.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date 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 If the Company to file shall receive a Registration Statement registering for sale all written request by the DLJ Entities or part of their respective Registrable Securities Permitted Transferees (any such requesting Person, a "Selling Shareholder") that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Shareholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "Demand Registration") promptly notify all Holders from whom at least 5 days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the Other Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Selling Shareholders, then held by the Selling Shareholders; provided, however, that (i) the Holders shall not make 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, and
(ii) subject to the Holders will not be restrictions set forth in Section 5.02, all other Registrable Securities of the same type as that to which the request by the Selling Shareholders relates which any Other Shareholder entitled to require request the Company to effect more than three a Piggyback Registration (3as such term is defined in Section 5.02) Demand Registrations in pursuant to Section 5.02 (all such Shareholders, together with the aggregate under this AgreementSelling Shareholders, and (iiithe "Holders") has requested the Company will to register by written request received by the Company within 2 days (one of which shall be a Business Day) after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect more than one (1) six Demand Registrations for the DLJ Entities; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration, in the reasonable opinion of DLJMB exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand Registration would constitute the First Public Offering, or (y) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 2-day period referred 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 4.9 of this Agreement; provided, that (i5.01(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other 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 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 number of Registrable Securities requested to be included therein therein. The Selling Shareholders requesting a registration under Section 5.01(a) 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 each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without the prior written consent unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany or unless the participating Shareholders reimburse the Company for all costs incurred by the Company in connection with such registration, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section 5.01 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section 5.01 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (y) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances registration statement has been sold thereunder, such registration statement shall not including be considered a Demand Registration, or (ii) if the events described Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than 66 2/3% of the immediately two preceding sentences Registrable Securities of this Section 4.2(d)the Selling Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Shareholders that, each Holder in its view, (i) the number of shares of Registrable Securities shall requested to be 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 Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the proviso 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 to be registered by the parties requesting such Demand Registration and all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company may postpone effecting a registration pursuant to this Section 4.2(a5.01 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 extended or renewed), if (1) an investment banking firm of recognized national standing shall advise the Company and the Selling Shareholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (2) 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 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 5.01 of Common Stock, the Other Shareholders, upon request of the Other Shareholders owning a majority of the Shares acquired by the Other Shareholders on Closing Date, may request that the Company register Common Stock which are Registrable Securities then owned by such Other Shareholders. In no event will the Company be required to effect more than one such Demand
Appears in 1 contract
Sources: Investors' Agreement (Lee Thomas H Equity Fund Iii L P)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined As --------------------- ------------------- provided for in the Merger Agreement)Section 2.2, the Company may include in a Demand Registration Equity Shares for the account of the Company, the other Holders of a majority of Registrable Securities shall have or other holders thereof exercising contractual piggy back or demand rights, on the right to require same terms and conditions as the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether therein for the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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) account of the Registrable Securities that Holder commencing the Company has been so requested to registerDemand Registration; provided, however, that (i) if the managing Underwriter or Underwriters of any underwritten offering described in Section 2.1 have informed the Company in writing that it is their opinion that the total number of Equity Shares which the Company and the Holders and any other holders participating therein intend to include in such offering is such as to materially and adversely affect the success of such offering, then (x) the number of Equity Shares to be offered for the account of such other holders (if any) shall not make a request for a Demand Registration under be reduced (to zero, if necessary), in the case of this Section 4.2(aclause (x) for Registrable Securities having an anticipated aggregate offering price pro rata in proportion to the respective number of less than $5,000,000Equity Shares requested to be registered, (iiy) thereafter, if necessary, the Holders will not number of Equity Shares to be entitled to require offered for the account of the Company (if any) shall be reduced (to effect more than three (3zero, if necessary) Demand Registrations in the aggregate under this Agreement, and (iiiz) 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 casethereafter, (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 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofif necessary, the Company number of Equity Shares to and be offered for the benefit of the underwriter(s) shall also be made to and for the benefit account of the Holders proposing to distribute their securities through (including 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) commencing the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (aDemand Registration) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made reduced pro rata 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 proportion to the Company by or on behalf respective number of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal Equity Shares requested to be registered to the net proceeds extent necessary to such Holder (after deduction of all underwriters’ discounts and commissions) from reduce the disposition of 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 total number of securities proposed Equity Shares requested to be included in such registration exceeds offering to the Underwriters’ Maximum Numbernumber of Equity Shares, then (i) the Company shall so advise all Holders of Registrable Securities to be included in if any, recommended by such Underwritten Offering managing Underwriters and (ii) if the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by offering is not underwritten, no other party, including the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum NumberCompany, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the 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 will not be deemed permitted to have been effected as a offer securities under any such Demand Registration unless the Holder commencing the Demand Registration Statement relating thereto has been declared effective by consents to the SECinclusion of such Equity Shares therein, at least 75% of the Registrable Securities requested such consent not to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)unreasonably withheld.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Initial Closing Date (as defined in the Merger Agreement)Date, the Holders Purchaser and any assignee of the Purchaser pursuant to Section 10.6 of this Agreement (each a majority of Registrable Securities “Holder”) shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Conversion Shares held by or issuable to them (including Conversion Shares that may be issued in respect of PIK Interest) (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)Offering, and (iii) containing all information about such Holder required to be 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 any Holders from whom the request for registration has not been received and (y) use commercially reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a8.1(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 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, 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the 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 only that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum NumberNumber prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities to shall be allocated pro rata among the Holders thereof on the basis of the 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperationfull cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a8.1(a). If (i) a registration requested pursuant to this Section 4.2 8.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 8.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 8.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d8.1(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a8.1(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined in would permit the Merger Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver of the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the Holders date a Demand is made shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration 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”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use its commercially reasonable best efforts to effect such the 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 regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
(ii) all other Registrable Securities that the Company has been requested to register by the Registering Stockholder pursuant to Section 4.1(b);
(iii) all shares of Common Stock that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); providedand
(iv) all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, howeverif any, that to be so registered.
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company will not be obligated shall give written notice of such Demand to effect more than one (1) 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 any six (6) month periodthis Section 4.1(b).
(bc) The offering 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 pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) 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 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(sin which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) in any prior underwritten offering conducted by the Company on its own behalf or on behalf and provided that at least 50% 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 securities proposed to be included in such registration exceeds the 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 only that number of Registrable Securities requested by the Holders thereof 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). In addition, the Company shall 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 statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any twelve-month period) if the Board determines in good faith and in its reasonable judgment that does not exceed the filing or effectiveness of the registration statement relating to such Underwriters’ Maximum NumberDemand Registration would cause the disclosure of material, such 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 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 a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Holder. No shares Stockholders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent securities of the holders of a majority in interest of the Registrable Securities.
(d) A registration 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 75% of the Registrable Securities Company duly requested to be included in such registration statement, pro rata on the registration basis of the number of such other securities requested to be included or such other method determined by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement Company.
(g) Any investment bank(s) that will serve as an underwriter with respect thereto; providedto such Demand Registration or, however, that if, after it has become effective, (i) if such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of 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 fails to provide Full Cooperationis owned by the Initial Stockholder, then such registration will be deemed not to have been effected for purposes of clause its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) of by the proviso to Section 4.2(a). If Stockholder participating in such Demand Registration that holds (itogether with its Permitted Transferees) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement number of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences Demand Registration constituting a plurality of this Section 4.2(d), each Holder of all Registrable Securities shall be 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 included in such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Shareholder Agreements (Nationstar Mortgage Holdings Inc.)
Demand Registration. If (ai) Subject to the provisions hereof, at any time on within three years from the ------------------- date of this Agreement the provisions of Article 3 shall have terminated pursuant to Section 3.2 hereof and if Premiere shall receive from an Initiating Holder, within sixty days of such termination, or (ii) at any time within the third year commencing after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)of this Agreement Premiere shall receive from an Initiating Holder, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor that Premiere effect a registration with respect to all or a part of the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or HoldersSecurities, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (Premiere will, as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandpracticable, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky as may be so requested and as would permit or other state securities laws facilitate the sale and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements distribution of all or regulations) such portion of the such Registrable Securities as are specified in such request, provided that the Company has been so requested to register; provided, however, that (i) the Holders Premiere shall not make a request for a Demand Registration under this Section 4.2(abe obligated to -------- effect, or take any action to effect, any such registration:
(a) for Unless such registration proposes to dispose of Registrable Securities having an anticipated aggregate expected gross offering price of less than at least ten million dollars ($5,000,000, (ii10,000,000) or 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.entire remaining number of Registrable Securities;
(b) The Unless Premiere is eligible to effect the registration under Form S-3 (or a successor form) as promulgated by the SEC or WorldCom agrees to pay all Registration Expenses (as defined below) in excess of $40,000;
(c) Which could result in the registration statement for such a registration being declared effective prior to the 90th day subsequent to the effective date of any registration effective pursuant to Section 5.2 or 5.3 of the Stock Purchase Agreement between Premiere and NationsBanc Capital Corporation dated January 18, 1994 (it being represented by Premiere that as of the date hereof no such registration is effective or pending);
(d) If, upon receipt of a registration request pursuant to this Section 4.1, Premiere is advised by a recognized national independent investment banking firm selected by Premiere that, in such firm's opinion, a registration at the time and on the terms requested would adversely affect any public offering of securities of Premiere by Premiere (other than in connection with benefit and similar plans) or by or on behalf of any shareholder of Premiere exercising a demand registration right (collectively, a "Premiere Offering") with respect to which Premiere has commenced preparations for a registration prior to the Registrable Securities receipt of a registration request pursuant to this Section 4.1, Premiere shall not be required to effect a registration pursuant to this Section 4.1 until the earlier of (x) 30 days after the completion of such Demand Registration 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 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 form of 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 public offering (an “Underwritten Offering”). In distribution pursuant to a registration effected under this Section 4.1, they shall do so through the services of such case, (i) the Company nationally recognized investment banking firm as they 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 Offeringselect, subject to the approval of the CompanyPremiere, which approval shall will not be unreasonably withheld withheld, conditioned or delayed delayed. If Other Stockholders request inclusion in any such registration that is underwritten, the Holders shall offer to include the securities of such Other Stockholders in the underwriting and (ii) may condition such offer on their acceptance of the Company further applicable provisions of this Article 4. The Holders whose shares are to be included in such registration and Premiere shall (together with the Holders all Other Stockholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement and related agreements in customary form with the representative of the underwriter or underwriters so selected for such underwriting. Such underwriting agreement will contain such representations and warranties by Premiere and such other terms and provisions as are customarily contained in underwriting agreements for firm commitment offerings of equity securities with respect to secondary distributions, including, without limitation, indemnities and contribution to the managing underwriter(s) proposing effect and to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth extent provided in Section 4.9 4.5 hereof and the provision of this Agreement; providedopinions of counsel and accountants' letters to the effect and to the extent provided in Section 4.4 hereof, that (i) and the representations and warranties by, and the other agreements on the part of, the Company Premiere to and for the benefit of the underwriter(s) such underwriters shall also be made to and for the benefit of the Holders. Premiere shall cooperate fully with the Holders proposing 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 distribute their be underwritten, the securities through of Premiere held by Other Stockholders (other than shares held by Sirrom and CMG which Sirrom and CMG has requested be included in the Underwritten Offeringoffering 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, (ii) no after the exclusion of such shares, further reductions are still required, the number of shares included in the registration by each Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in reduced on a registration other than customary representations, warranties and agreements and pro rata basis (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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 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 proposed to excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration exceeds the 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 only that number of Registrable Securities registration. If any Other Stockholder who has requested by the Holders thereof to be included inclusion in such registration that does not exceed such Underwriters’ Maximum Numberas provided above disapproves of the terms of the underwriting, such Registrable Securities person may elect to withdraw therefrom by written notice to Premiere, the underwriter and the Initiating Holders. The securities so withdrawn shall also be allocated pro rata among withdrawn from registration. If the Holders thereof on the basis of underwriter has not limited the number of Registrable Securities requested or other securities to be included therein by each underwritten, Premiere and officers and directors of Premiere may include its or their securities for its or their own account in such Holder. No shares registration if the representative so agrees and if the number 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 will not be deemed to and other securities which would otherwise have been effected as a Demand Registration unless 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 by the Holders are included in such registration, registration and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration underwriting will not thereby be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)limited.
Appears in 1 contract
Demand Registration. (a) Subject to If the provisions hereofCompany shall receive a written request from any DLJ Funds (or, at any time on or after one occasion under the date that is 180 days after the Closing Date (as defined in the Merger Agreement)circumstances set forth herein, the Holders of a majority of Registrable Securities shall have DLJIP Funds) (such requesting person, the right to require "REQUESTING SHAREHOLDER") that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) of all or any portion of such Requesting Shareholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give notice of such requested registration (xeach such request shall be referred to herein as a "DEMAND REGISTRATION") promptly notify all Holders from whom at least 15 Business Days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the other Shareholders and (y) thereupon shall use reasonable its best efforts to effect such effect, as expeditiously as possible, the 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 of:
(i) all Registrable Securities for which the Requesting Shareholders have requested registration under this Section 5.01, and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders that any other governmental requirements or regulationsShareholders with rights to request registration under Section 5.02 (all such Shareholders, together with the Requesting Shareholders, the "REGISTERING SHAREHOLDERS") have requested the Company to register by request received by the Company within ten Business Days after such Shareholders receive the Company's notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make 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 OfferingPROVIDED that, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 5.01(d) 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 ofhereof, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) 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 securities proposed to be included in such registration exceeds the 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 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 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Shareholders in such Demand Registration are at least (A) $50,000,000 if such Demand Registration would constitute the Initial Public Offering, or (B) $25,000,000 in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten Business Day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, PROVIDED that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than 66-2/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Shareholders that, in its view, the number of Company Securities that the Registering Shareholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the "MAXIMUM OFFERING SIZE"), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Requesting Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw included in such registration by each), and
(ii) second, all or any part of its Registrable Securities from proposed to be registered by the Company or requested to be included in such registration by any other Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Company and such other Registering Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each).
(f) The DLJIP Funds shall only be entitled to one Demand Registration, which cannot be the Initial Public Offering. The DLJIP Funds shall not be required to exercise their Warrants as a prerequisite to making a Demand Registration at any time prior REQUEST to the commencement of marketing of Company, but the DLJIP Funds shall only be entitled to have the Company register Common Shares and not Warrants. Notwithstanding anything to the contrary in this Agreement, the DLJIP Funds shall not be entitled, in connection with such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) to have officers of the proviso to Section 4.2(a)Company prepare and make presentations at any "road shows" or before any analysts or rating agencies.
Appears in 1 contract
Sources: Shareholder Agreement (Advanstar Communications Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after four (4) year anniversary of the Closing Date (as defined in the Merger Agreement)Effective Date, the Holders of a majority of Registrable Securities Investor shall have the right to require the Company to file a Registration Statement registering for the offer, sale and distribution of all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holdersregistration, (ii) specifying whether the intended method of disposition thereof is thereof, including whether pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder the Investor required to be included in such Registration Statement in accordance with applicable law. The date upon which the Investor delivers such request shall be referred to herein as a “Demand Date.” As soon as practicable after the receipt of such demandDemand Date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best 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 Company has been so requested to register; provided, however, that (iA) the Holders Investor shall not make a request for a Demand Registration under this Section 4.2(a) for unless the Registrable Securities having an anticipated requested to be so registered (i) would reasonably be expected to result in aggregate offering price gross cash sale proceeds in excess of less than $5,000,000, 20,000,000 (without regard to any underwriting discount or commission) or (ii) comprise at least 10% of the Holders Outstanding Securities prior to the applicable Demand Date, and (B) the Investor will not be entitled to require the Company to effect more than three five (35) Demand Registrations in the aggregate under this Agreement. Notwithstanding the foregoing, and the limitation set forth in proviso (iiiA) the Company above will not be obligated to effect more than one (1) apply so long as the Investor requests a Demand Registration in any six (6) month periodfor all of the Registrable Securities it holds at the time of the request.
(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 Company, with the written consent of the Investor (not to be unreasonably withheld) may designate the managing underwriter(s), investment banker(s) and manager(s) of the Underwritten Offering (including in any Shelf 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 underwritingInvestor) 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 2.9 of this Agreement; 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) Investor 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 not 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 (iiiii) the liability of each Holder the Investor in respect of any indemnification, contribution or other obligation of such Holder the Investor 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 prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, 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 the Investor 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 the Investor (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder the Investor pursuant to such Underwritten Offering. No Holder The Investor may not participate in any such Underwritten Offering unless such Holder the Investor 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 good faith opinion the number of securities proposed to be included in such registration exceeds the 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 only that number of Registrable Securities requested by the Holders thereof Investor to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated Number pro rata among the Holders thereof holders of Registrable Securities that have requested to participate in such Demand Registration on the basis of the number percentage of the Registrable Securities requested to be included therein in such Registration Statement by each such Holderholders. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders Investor 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 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by (i) covers all Registrable Securities specified in the SECapplicable Demand Registration request for sale in accordance with the intended method or methods of distribution specified in such Demand Registration, subject to the underwriter cutbacks described in Section 2.1(c) (but only if the Underwriters’ Maximum Number represents at least 75% of the Registrable Securities requested to be included in the registration so specified), (ii) has been declared effective by the Holders are included in such registrationCommission, (iii) is maintained effective for the period required pursuant to this Agreement and (iv) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (iA) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (but only if such stop order, injunction or other order or requirement did not result from a statement or alleged statement in or omission or alleged omission from such Registration Statement, any preliminary Prospectus, final Prospectus or summary Prospectus contained therein, or any amendment or supplement thereto, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with information specifically furnished to the Company by the Investor for incorporation therein), and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders Investor pursuant to the Registration Statement, or (iiB) 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 (iiB) of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders at least 75% of the Registrable Securities covered by such registrationthe effective Registration Statement have been sold, then such Demand Registration request shall not count as a Demand Registration request for the purposes of clause (B) of the proviso to Section 2.1(a) and the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities the Investor shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (iiB) of the proviso to Section 4.2(a2.1(a).
(e) The Investor shall be permitted to abandon or withdraw all or any part of their shares from a Demand Registration, in which event the Company shall abandon or withdraw such Registration Statement; provided, that such Demand Registration underlying such abandonment or withdrawal shall not be deemed to be a Demand Notice for purposes of clause (B) of the proviso to Section 2.1(a) if (a) such withdrawal or abandonment is requested prior to the filing of the applicable Registration Statement or in response to a material adverse change regarding the Company or a material adverse change in the financial markets generally or (b) the Investor reimburses the Company for the documented out-of-pocket Registration Expenses incurred by the Company in connection with such Demand Registration prior to the date of such abandonment or withdrawal.
Appears in 1 contract
Sources: Investor Rights Agreement (Sentio Healthcare Properties Inc)
Demand Registration. (a) Subject to The Company may include in a Demand Registration shares of Common Stock for the provisions hereof, at any time on or after account of the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Company and Registrable Securities shall have for the right to require account of the Company to file a Registration Statement registering Piggy-Back Holders and Shares for sale all or part the account of their respective Registrable Securities under other holders thereof exercising contractual piggy-back rights, on the Securities Act (a “Demand Registration”) by delivering a written request therefor to same terms and conditions as the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether therein for the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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) account of the Registrable Securities that the Company has been so requested to registerDemanding Holders; provided, however, that (i) if the Holders shall not make a request for a Demand Registration under this managing Underwriter or Underwriters of any underwritten offering described in 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 2.1 have informed the Company to effect more than three (3) Demand Registrations in writing that it is their opinion that the aggregate under this Agreementtotal number of shares which the Demanding Holders, 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 any Piggy-Back Holders and any such other holders intend to include in such offering is such as to materially and adversely affect the success of such offering, then (iix) the Company shall (together with number of Shares to be offered for 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 account 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 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 (aif any) shall be limited reduced (to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementzero, 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 if necessary) and (by) shall not in any eventthereafter, absent fraud or intentional misrepresentationif necessary, 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed Shares to be offered for the account of such Piggy-Back Holders and such other holders shall be reduced (to zero, if necessary), in the case of this clause (y) pro rata in proportion to the respective number of Shares requested to be registered, to the extent necessary to reduce the total number of Shares requested to be included in such registration offering to the number of Shares, if any, recommended by such managing Underwriters (and if the number of Shares to be offered for the account of each such Person has been reduced to zero, and the number of Shares requested to be registered by the Demanding Holders exceeds the number of Shares recommended by such managing Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders number of Registrable Securities Shares to be included offered for the account of the Demanding Holders shall be reduced pro rata in such Underwritten Offering proportion to the respective number of Shares requested to be registered by the Demanding Holders) and (ii) if the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does offering is not exceed such Underwriters’ Maximum Numberunderwritten, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person no other party (other than Registrable Securities held by the Piggy-Back 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 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 75% of the Registrable Securities requested to be included in the registration 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; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant holders exercising contractual piggy-back rights not subject to the registration, and in each case less than all of the Registrable Securities covered reduction contemplated by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 this clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration), then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)Company, each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).offer
Appears in 1 contract
Sources: Registration Rights Agreement (Dominicks Supermarkets Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the earlier of (i) five (5) years from the date that is 180 of this Agreement and (ii) one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right Company’s Common Stock pursuant to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities an effective registration under the Securities Act Act, the holders of at least fifty percent (a “Demand Registration”50%) by delivering a written request therefor to of the Registrable Securities then outstanding may notify the Company that they intend to offer or cause to be offered for public sale at least fifty percent (i50%) specifying of the Registrable Securities then outstanding (or any lesser number of Registrable Securities if the anticipated aggregate sale price, net of underwriting discounts and commissions, if any, would exceed $10,000,000). 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 the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its reasonable best efforts to expeditiously effect (but in any event no later than thirty (30) days after such request) the registration of all Registrable Securities whose holders request participation in 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 Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make 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 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (aregistration pursuant to a request under this Section 2(a) more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2(a) within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve (12which 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) month periodunless and until the registration statement relating to such registration has been declared effective by the Commission; 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) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then securities to be excluded shall be determined in the following order of priority: (i) first, persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) second, securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) third, securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) fourth, Registrable Securities of holders who did not make the original request for registration and, if necessary, (v) fifth, Registrable Securities of holders who requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities pursuant to be allocated pro rata among the Holders thereof on the basis Section 2(a). If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iv) or (v), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than 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 Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration 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 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registrationoffering, and subject only to the consent of the Company, which consent shall not be unreasonably withheld. The Company has complied in all material respects with may not cause any other registration of securities for sale for its obligations under this Agreement with respect thereto; provided, however, that if, after it has own account (other than a registration effected solely to implement an employee benefit plan) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 1 contract
Sources: Registration Rights Agreement (Kala Pharmaceuticals, Inc.)
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on or after the Shelf Termination Date (but not later than the date that is 180 days after the Closing Date Shelf Termination Date) (as defined in the Merger Agreement)"Demand Request") requesting that the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Holders of Issuer shall prepare and, within 60 days after such request, file with the Commission a majority of registration statement with respect to such Registrable Securities shall have the right and thereafter use its reasonable best efforts to require the Company cause such registration statement to file a Registration Statement registering for sale all or part of their respective Registrable Securities be declared effective under the Securities 1933 Act (a “Demand Registration”) by delivering a written request therefor 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 Company contrary:
(i) specifying the Holders may collectively exercise their rights to request registration under this Section 2.02(a) on not more than one occasion (such registration being referred to herein as the "Demand Registration");
(ii) the Issuer shall not be required to effect the Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to register; provided, however, that (i) the Holders shall not make 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 is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 3,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) the Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision 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 this Agreement to the approval of the Companycontrary, 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 4.9 of this Agreement; 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. 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 terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 securities proposed to be included in such registration exceeds the 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 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 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 will requested by Holders pursuant to this Section 2.02 shall not be deemed to have been effected as a effected, and, therefore, not requested and the rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, if such Demand Registration unless has not become effective under 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 by the Holders are included in 1933 Act or if such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that ifDemand Registration, after it has become effectivebecame effective under the 1933 Act, was not maintained effective under the 1933 Act (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for 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 be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the 180-day period referred to in Section 2.02(a), the Holders shall not lose their right to their Demand Registration under Section 2.02 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(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 2.02(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits 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 Registrable Securities and additional equity securities in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated, then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering shall be allocated pro rata among the requesting Holders and the Issuer on the basis of the relative number requested to be included therein by the Issuer and each such Holder (in which case Section 2.02(a)(ii) shall be disregarded for purposes of such Demand Registration); provided that in the event such a pro rata allocation shall be made in connection with the Demand Request, the remaining Holders shall be entitled to request one additional Demand Registration (without needing to make a Demand Request therefor within the 180-day period referred to in Section 2.02(a) and disregarding Section 2.02(a)(ii) for purposes of such additional Demand Registration); provided further that in conection with such additional Demand Registration, if any, the Issuer may not include additional securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any such additional equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder (or, if so requested by the Issuer after appropriate notice to the Zell ▇▇▇ders' Agent by the Issuer, the Zell ▇▇▇ders' Agent shall provide written notice to each Zell ▇▇▇▇▇▇), ▇dvising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 is deemed not 2.02(d), elect to have been effected as a so include Registrable Securities in the Demand Registration or (ii) by written notice to such effect to the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after Issuer specifying the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder number of Registrable Securities shall desired to be 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 so included by such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
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Demand Registration. (a) Subject to the provisions hereofSection 4.2(a), if, at any time on or after the date that which is 180 days after eleven (11) months from the Closing Date (as defined date hereof, the Company shall receive from a Holder or Holders beneficially owning in the Merger Agreementaggregate more than 50% of the Registrable Securities a written request (a "Demand Request") that the Company register under the Securities Act the Registrable Securities, then the Company shall use its commercially reasonable efforts to cause all Registrable Securities specified in such Demand Request to be registered as soon as reasonably practicable so as to permit the offering and sale thereof and, in connection therewith, shall, as expeditiously as possible, but in any event not later than thirty (30) days (excluding any days which occur during the period of a permitted Suspension Condition under Section 4.2 below) after receipt of a Demand Request, prepare and file with the SEC, a registration statement, which may, at the option of such Holder(s), the Holders of be a majority of Registrable Securities shall have the right to require shelf registration statement on Form S-3 (if such Form S-3 is available for use by the Company to file a Registration Statement registering for sale all or part effect the registration and distribution of their respective the Registrable Securities Securities) pursuant to Rule 415(a)(1)(i) under the Securities Act (a “"Demand Registration”Registration Statement") by delivering a written request therefor and use its commercially reasonable efforts to the Company (i) specifying the number of Registrable Securities cause such Demand Registration Statement to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be 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 (y) use reasonable best 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 Company has been so requested to registerdeclared effective; provided, however, that such Demand Request shall: (i) specify the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, intended to be offered and sold by the Holder(s) pursuant thereto; (ii) express the Holders will not be entitled present intention of the Holder(s) to require offer or cause 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 such Registrable Securities pursuant to such Demand Registration may be in Statement; (iii) describe the form nature or method of distribution of such Registrable Securities pursuant to such Demand Registration Statement, including by means of an underwritten public offering offering; and (an “Underwritten Offering”). In such case, (iiv) contain the Company may designate the managing underwriter(s) undertaking of the Underwritten Offering, provided that Holder(s) to provide all such Holders information and materials and take all such actions as may designate a co-managing underwriter be required in order 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 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, permit the Company to and for the benefit comply with all applicable requirements of the underwriter(s) shall also be made to Securities Act, the Exchange Act and for the benefit rules and regulations of the Holders proposing SEC thereunder, and to distribute their securities through obtain any desired acceleration of the Underwritten Offeringeffective date of such Demand Registration Statement.
(b) Notwithstanding anything herein to the contrary, (ii) if a Form S-3 is available for use by the Company to effect the registration and distribution of the Registrable Securities, the Demand Registration Statement shall be on Form S-3, and 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 Demand Request that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in register 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. 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 Form S-1 or other form of attorney, indemnities and other documents reasonably required registration under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (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 HoldersSecurities Act.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise The procedures to be followed by the Company that in its or their reasonable opinion and the number of securities proposed to be included in such registration exceeds the 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 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 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 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 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationHolders, and the respective rights and obligations of the Company has complied in all material respects with its obligations under this Agreement and the Holders, with respect thereto; providedto the preparation, however, that if, after it has become effective, (i) such filing and effectiveness of the Demand Registration Statement or and the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) 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 registration requested pursuant to under this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this 4.1 are set forth in Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be 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 Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)hereof.
Appears in 1 contract
Sources: Standstill and Registration Rights Agreement (Cell Genesys Inc)