Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders. (b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration. (c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration. (d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration. (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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder. (f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f). (g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time (i) following the fourth anniversary of the final closing of the offering of securities pursuant to the Placement Memorandum and before the filing date of the Company's initial public offering of its Common Stock ("IPO"), in writing if the Company receives a written request from the holders of at least sixty percent (a “Demand Request”)60%) of the Registrable Securities outstanding, that the Company effect file a registration statement under the Securities Act covering the registration of Registrable Securities, or (ii) after twelve (12) months from the effective date of the IPO, if the Company is entitled to use Form S-3 (or any successor short-form registration statement adopted by the Commission for the resale of securities) and the Company receives a written request from the holders of at least forty percent (40%) of the Registrable Securities outstanding that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities, then the Company shall promptly give written notice of such request (together with a list of the jurisdictions in which the Company intends to attempt to qualify such securities under the applicable state securities laws) to all Holders. As soon as practicable (but in no event later than ninety (90) days after receipt by the Company of a request pursuant to the preceding clause (i) or sixty (60) days after receipt by the Company of a request pursuant to the preceding clause (ii)), and subject to the limitations of Subsection 2(b) hereof, the Company shall file a registration statement in accordance with Section 5 hereof, with respect to the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by which the Holders requesting may specify in such request in writing within twenty (20) days after receipt of such notice from the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all HoldersCompany.
(b) Each Demand Request If the Holders initiating the registration request (the "Initiating Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall specify so advise the Company as a part of their request, and the Company shall include such information in the written notice referred to in Subsection 2(a) hereof. In such event, the right of any Holder to include securities in such registration shall be conditioned upon the inclusion of such securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders) as provided in this Section 2.
(c) If other Holders request inclusion in such registration, the Initiating Holders shall offer to such Holders the opportunity to include Registrable Securities held by them in the underwriting, and may condition such offer on the acceptance by such other Holders of Registrable Securities of the further provisions of this Section 2. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the representative of the underwriter(s) selected for such underwriting by a majority in interest of the Initiating Holders and reasonably acceptable to the Company.
(d) If, in the written opinion of the managing underwriter of any such offering, a limitation of the number of shares to be underwritten is required, the Initiating Holders shall so advise all holders of Registrable Securities, and the number of Registrable Securities proposed to be soldincluded in the underwriting will be allocated among all such Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities that would otherwise be entitled to inclusion in such registration statement; provided, however, in the event that less than fifty percent (50%) of the Registrable Securities requested to be registered are permitted by the managing underwriter be included in such registration statement, then a majority in interest of the Initiating Holders may withdraw their request to register Registrable Securities and their request shall not count as a registration for the purpose of Subsection 2(e) hereof. Subject No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If any holder of securities to be included in such registration disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the underwriter and the Initiating Holders. The securities so withdrawn shall also be withdrawn from registration. If the underwriter has not limited the number of Registrable Securities or other securities to be underwritten, the Company may include its securities for its own account in such registration with the prior agreement of the underwriter, provided the number of Registrable Securities and other securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
(e) The Company is obligated to effect no more than two (2) such registrations at the request of the Holders pursuant to this Section 4.01(g)2.
(f) Notwithstanding the foregoing, if the Company shall furnish to the Initiating Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be detrimental to the Company and its shareholders for such registration statement to be filed, the Company shall file have the right to defer such filing for a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 period of not more than one hundred twenty (120) days after receiving a Demand Request (receipt of the “Required Filing Date”) and shall use all commercially reasonable efforts to cause request from the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingInitiating Holders; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will may not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 utilize this right more than once in any registration pursuant to Section 4.01(atwelve (12) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registrationmonth period.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. Subject to the limitations contained in Section 5 herein:
a. At any time, and from time to time, on or after the eight (a8) month anniversary date of the date of execution of this Agreement, and until otherwise terminated pursuant to this Agreement, Couphar shall have the right to make a written request to the Company (specifying that it is being made pursuant to this Section 3) Any Investor may request, in writing (a “Demand Request”), that the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act covering the registration of Registrable Stock; provided, however, that:
i. The distribution of the Registerable Stock covered by such request shall be effected pursuant to effect Rule 415 under the Demand Registration Securities Act (i.e., a shelf registration), unless the distribution is effected by means of an underwritten offering in accordance with, and subject to the limitations of, Section 3(b) herein in which case the registration may be, at Couphar's reasonable election, effected pursuant to Rule 415 but is not to required to be so effected;
ii. If the distribution of the Registrable Stock covered by such request is to be effected pursuant to Rule 415 under the Securities Act, then the total number of shares of Registrable Stock covered by such request shall not exceed an amount that Couphar, at the time that the registration statement becomes effective, reasonably expects to offer and sell within two (2) years from the initial effective date of the registration;
iii. The distribution of the Registrable Stock covered by such request shall not be effected by means of an underwritten offering, except as promptly as possible otherwise provided in Section 3(b) herein; and
iv. If both (A) ▇▇▇▇▇▇▇▇ is an Affiliate of the Company at the time that the registration statement becomes effective, and in any event within 90 days after receiving a Demand Request (B) the “Required Filing Date”distribution of the Registrable Stock covered by such request is not being effected by means of an underwritten offering, then the distribution of the Registrable Stock covered by such request shall comply with the volume limitations of Rule 144(e) and under the Securities Act. Upon receipt of such request, the Company shall use all commercially reasonable its best efforts to cause the same to be declared effective registered under the Securities Act, within sixty (60) days after the Company has received such request, all Registrable Stock that Couphar has requested to be registered, subject to the above-described limitations.
b. In the event that ▇▇▇▇▇▇▇▇ were to cease to be an Affiliate of the Company, Couphar shall thereafter have the right to have the Registrable Stock covered by the SEC (or, if eligible, to become automatically effectivea request described in Section 3(a) as promptly as practicable after such filingherein distributed by means of an underwritten offering; provided, however, that the Company need is required to effect only two no more than one (21) Demand Registrations registration by means of an underwritten offering. If pursuant thereto Couphar intends to Demand Requests made so distribute the Registrable Stock covered by Holders such a request by means of Registrable Securities an underwritten offering, it shall so advise the Company as a part of the request pursuant to Section 4.01(a); provided3(a) herein. In such event, further, that if any a Permitted Transferee's right to include its Registrable Securities requested to Stock in such registration shall be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each conditioned upon such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities Permitted Transferee's participation in such underwritten offering and the Company has performed inclusion of its obligations hereunder Registrable Stock in all material respectsthe underwritten offering to the extent provided in this Section 3. Furthermore, in such event, Couphar shall enter into an underwriting agreement in customary form with the Permitted Underwriter. Such Permitted Underwriter shall be selected by Couphar and shall be subject to the written approval of the Company, which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration)approval shall not be unreasonably withheld; provided, however, that ifall of the representations and warranties by, after and the other agreements on the part of, the Company to and for the benefit of such Permitted Underwriter shall also be made to and for the benefit of Couphar and that any or all of the conditions precedent to the obligations of such Permitted Underwriter under such underwriting agreement shall be conditions precedent to the obligations of Couphar; and provided further that Couphar shall not be required to make any representations or warranties to or agreements with the Company or any Permitted Underwriter other than representations, warranties or agreements regarding Couphar, the Registrable Stock and Couphar's intended method of distribution and any other representation required by law or reasonably required by any Permitted Underwriter.
c. Notwithstanding any other provision of this Agreement to the contrary, the Company shall not be required to effect a registration pursuant to this Section 3 during the period starting with the fourteenth (14th) day immediately preceding the date of anticipated filing by the Company of, and ending on a date ninety (90) days following the effective date of, a registration statement pertaining to a public offering of securities for the account of the Company; provided, however, that the Company shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and provided further that the Company's estimate of the date of filing such registration statement shall be made in good faith.
d. Except as otherwise provided in this Agreement, the Company shall be obligated to effect an unlimited number of registrations pursuant to this Section 3; provided, however, that:
i. The Company shall not be required to effect more than one (1) registration statement pursuant to this Section 3 within any twelve (12) month period;
ii. The Company shall not be required to effect more than one (1) registration statement distributing the Registrable Stock by means of an underwritten public offering, as further described in Section 3(b) herein;
iii. A registration requested pursuant to this Section 3 shall not be deemed to have been effected by the Company for purposes of Section 3(b) or Section 3(d) herein unless (A) it has become effectivebeen declared effective by the Commission, an (B) it has remained effective for the period set forth in Section 6(a)(ii) herein, (C) the offering of Registrable Securities Stock pursuant to a such registration is interfered with by not subject to any stop order, injunction or other order or requirement of the SEC Commission (other than any such action prompted by any act or other governmental agency or courtomission of Couphar), such registration will be deemed not to have been effected and will not count as a Demand Registration.
(dD) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority no limitation of the number of shares of Registrable Securities Stock to be registered underwritten has been required in a Demand Registration shall select good faith in writing by the investment banking firm or firms Permitted Underwriter due to manage the underwritten offeringmarketing factors, provided that in the case of any such selection limitation, Couphar shall be subject so advise the Company (including the delivery to the consent Company of said written opinion of the Company, which consent Permitted Underwriter) and shall not be unreasonably withheld. No Person may participate in any have the right to have the Company effect one (1) additional underwritten registration pursuant to Section 4.01(a3(b) unless such Person (i) agrees herein solely with regard to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which of Registrable Stock so limited; and
iv. In the event that the No-Action Letter has been issued, (A) the Company is so advised can shall not be sold in obligated to effect any further registrations pursuant to this Section 3 subsequent to the later of (I) the date of such offering without a Material Adverse Effect and such shares shall be allocated pro rata among issuance, or (II) the Requesting Holders on the basis one (1) year anniversary date of the number commencement of Registrable Securities requested Couphar's holding period for the Exchangeable Shares that may be tacked to that of its shares of Common Stock received or to be included in such registration received upon exchange of the Exchangeable Shares, for purposes of determining the holding period required by each such Requesting Holder.
Rule 144(d) under the Securities Act; and (fB) Upon receipt subsequent to the later of any Demand Requestsaid dates, the Company shall promptly remove from registration (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) means of a post-effective amendment or otherwise) any unsold Registrable Stock covered by any then pending registration statement required by Section 4.01(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 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 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 effected pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once3.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestIf the Company shall be requested by the Subscriber to effect a registration under the Act, in writing (a “Demand Request”)then the Company shall use its best efforts to effect the registration of such Registrable Securities; PROVIDED however, that the Company shall not be obligated to effect the any registration under the Securities Act of all except in accordance with the following provisions:
(a) The Company shall not be obligated to file (i) more than one registration statement initiated pursuant to this Section 3.4 which becomes effective or part of its which is rescinded by the Subscriber without reimbursement, (ii) any registration statement during any period in which any other registration statement (other than on Form S-4 or their Registrable Form S-8 promulgated under the Securities (a “Demand Registration”). Notwithstanding Act or any successor forms thereto) pursuant to which shares offered by the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities Company are to be or were sold by has been filed and not withdrawn or has been declared effective within the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.prior 90 days;
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the The Company shall file a registration statement under the Securities Act not be obligated to effect any registration under this Section 3.4 if the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (Subscriber has been given the “Required Filing Date”) and shall use opportunity to register all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of its Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.3 hereof;
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer delay the filing (but not the preparation) or effectiveness of a any registration statement required by Section 4.01(a) until for a date period not later than to exceed 90 days after the Required Filing Date (or, if longer, 90 days after the effective date of the a request for registration statement contemplated by clause (ii) below) pursuant to this Section 3.4 if (i) at the time of such request the Company receives is engaged, or has fixed plans to engage within 60 days of the Demand Requesttime of such request, the Company or any in a firm commitment underwritten public offering of its Subsidiaries are engaged own shares in confidential negotiations or other confidential business activitieswhich the Subscriber may, disclosure of which would be required in to the extent such registration statement is in the registration process, include Registrable Shares pursuant to Section 3.5 or (but would not be required if such registration statement were not filed)ii) the Company shall furnish to the Subscriber certificate signed by the President or its General Counsel stating that, and in the good faith judgment of the Board determines in good faith of Directors of the Company, that such disclosure (A) it would be materially seriously detrimental to the Company and its stockholders shareholders for such registration statement to be filed or (iiB) prior there exists a material development or a potential material development with respect to receiving or involving the Demand RequestCompany that the Company would be obligated to disclose in the prospectus or offering circular used in connection with the registration statement, which disclosure would in the Board had determined to effect a registered underwritten public offering judgment 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 be premature or otherwise inadvisable at 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 4.01(g) shall be liftedtime, 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 preceding sentence, the proposed registration for the Company’s account that it is abandoned. In order therefore essential to defer the filing of such registration statement.
(d) A requested registration under this Section 3.4 may be rescinded by written notice to the Company by the Subscriber; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 4.01(g), 3.4 above if the Subscriber shall have reimbursed 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 for all out-of-pocket expenses incurred by an executive officer of the Company stating that the Company is deferring in connection with such filing pursuant to this Section 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreementrescinded registration. The Company may defer the filing select any firm of underwriters in connection with a particular registration statement pursuant to under this Section 4.01(g) only once3.4.
Appears in 1 contract
Sources: General Release and Settlement Agreement (Chequemate International Inc)
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that Upon the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders election of a majority of the Registrable Securities 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 Exchange Stock issued by InnovaCom to the consent Sierra Vista Shareholder (the "Holders") pursuant to this Agreement, InnovaCom shall promptly initiate a registration with respect to all or a part of the CompanyExchange Stock (hereinafter referred to as the "Registrable Securities"). In this respect, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 all Registrable Securities, InnovaCom will:
(a) promptly give written notice of the proposed registration to all other than representations and warranties Holders; and
(b) as to (A) such Person’s ownership of his or soon as practicable, use its Registrable Securities to be transferred free and clear of all liens, claims and encumbrances, (B) such Person’s power and authority best efforts to effect such transfer registration (including, without limitation, the execution of an undertaking to file post-effective amendments, and (C) such matters pertaining to appropriate compliance with applicable regulations issued under the Securities Act and applicable state securities laws laws) as may be reasonably requested; provided, further, however, that so requested and as would permit or facilitate the obligation sale and distribution of all or such portion of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included as are specified in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effectrequest, together with all or such portion of the Registrable Securities of the Requesting any Holder or Holders to be included joining in such Demand Registration request as are specified in a written request given within thirty (30) days after receipt of such written notice from InnovaCom; provided that InnovaCom shall equal the number of shares not be obligated to effect, or to take any action to effect, any such registration pursuant to this SECTION 6.1 in any particular jurisdiction in which the Company is so advised can InnovaCom would be sold required to qualify to do business as a foreign corporation in such offering without jurisdiction unless InnovaCom is already qualified as a Material Adverse Effect foreign corporation in such jurisdiction and such shares except as may be required by the Securities Act or applicable rules or regulations thereunder;
(c) The Holders of Registrable Securities shall be allocated pro rata among entitled to only one (1) registration pursuant to this SECTION 6.1.1 which has been declared or ordered effective by the Requesting Commission for a period of at least (90) days; PROVIDED, HOWEVER, if in such registration the Holders on the basis are not able to sell in such registration at least 90% of the number of their Registrable Securities requested to be included in such registration, then such Holders will be entitled to demand one additional registration by each such Requesting Holder.pursuant to the provisions of this SECTION 6.1.1;
(fd) Upon receipt of any Demand Request, the Company Such registration shall promptly (but in any event within 10 days) give written notice of such proposed Demand be on a Long-Form Registration or a Short-Form Registration to all other Investors, who shall have the right, exercisable by written notice extent InnovaCom meets the applicable requirements under the Securities Act for a Short-Form Registration. Subject to the Company within 20 days of their foregoing clauses (b), (c) and (d), InnovaCom shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practicable after receipt of the Company’s notice, request or requests of the Holders demanding registration pursuant to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes provisions of this Section 4.01(f6.1.1 (the "Initiating Holders").
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Plan and Agreement of Reorganization (Innovacom Inc)
Demand Registration. (ai) Any At any time after the date that is 180 days after the Closing, the Investor may request, in writing (a “Demand Request”), that the Company effect the request registration under the Securities Act of all or part of its or their Registrable Securities then held on a Form S-1 or Form S-3 registration statement (or any successor to each such form) (or, if Form S-1 or Form S-3 is not then available, on such form of registration statement as is then available to effect a registration of the Registrable Securities pursuant to this subsection (b)(i)) (each a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Each request for a Demand Registration (shall specify the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total approximate number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed required to be soldregistered. Subject to Section 4.01(g)Upon receipt of a Demand Registration request, the Company shall file cause a registration statement under Registration Statement to be filed within forty-five (45) days after the Securities Act date on which such request was received by the Company. The Company shall not be required to effect the a Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (A) more than two (2) times for the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingInvestor; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders Statement shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration requested under this subsection (b)(i)(A) unless and until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 if the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited Company furnishes to the net amount received Investor a certificate signed by such Person from an authorized officer of the sale Company stating that (a) within sixty (60) days of his or its Registrable Securities pursuant receipt of the Demand Registration request under this subsection (b)(i), the Company expects to such registration.
(e) No file a registration statement for the public offering of securities to be sold for the account of any Person the Company (including the Company) other than a Requesting Holder shall be included in registration of securities (x) issuable pursuant to an employee stock option, stock purchase or similar plan, (y) issuable pursuant to a Demand Registration to the extent that the managing underwriter merger, exchange offer or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success a transaction of the offering type specified in Rule 145(a) under the Securities Act or (a “Material Adverse Effect”z) in which the only securities being registered are securities issuable upon conversion of debt securities which are also being registered). Furthermore, in the event the managing underwriter or underwriters shall advise the Company or the Requesting Holders provided, that even after exclusion of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company is so advised can actively employing good faith efforts to cause such registration statement to become effective, or (b) the Company is engaged in a material transaction or has an undisclosed material corporate development, in either case, which would 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 Securities requested required to be included disclosed in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Requestthe Registration Statement, and in the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt good faith judgment of the Company’s noticeBoard of Directors, to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or at such time (ii) prior to receiving the Demand Requestin which case, the Board had determined to effect a registered underwritten public offering of Company shall disclose the Company’s Securities for matter as promptly as reasonably practicable and thereafter file 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 4.01(g) shall be liftedRegistration Statement, and the requested registration statement Investor agrees not to disclose any information about such material transaction to third parties until such disclosure has occurred or such information has entered the public domain other than through breach of this provision by such Investor), provided, however, that the Company shall be filed forthwith, if, in have 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order right to defer the filing of a registration statement the Registration Statement pursuant to this Section 4.01(g), the Company shall promptly (but subsection twice 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 4.01(gtwelve (12) month period and a general statement of the reason for any such deferral may not exceed a period of more than sixty (60) days in the aggregate during such twelve-month period.
(ii) If the Investor requests a Demand Registration and an approximation of the anticipated delay. Within 20 days after receiving such certificate, the holders of a majority of elects to distribute the Registrable Securities held covered by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawnits request in an underwritten offering, the Demand Request Investor shall be deemed not so advise the Company as a part of its request made pursuant to have been made for all purposes of this Agreementsubsection (b)(i). The Company may defer shall select the filing investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, however, that such selection shall be subject to the consent of a particular registration statement pursuant to this Section 4.01(g) only oncethe Investor, which consent shall not be unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestSubject to the conditions of this Section 2.2, in writing (if the Company shall receive a “Demand Request”), written request from the Holders holding not less than a majority of the Registrable Securities then outstanding that the Company effect file a registration statement for all or part of the Registrable Securities under the Securities Act with an anticipated aggregate offering price of at least $10,000,000 (the “Demand Holders”) then the Company shall, within ten (10) calendar days of the receipt thereof, give written notice of such request to all Holders, and, subject to the limitations of this Section 2.2, use its commercially reasonable efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities that all Holders request to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” registered pursuant to Section 4.01(f) hereof) represent, and in the aggregate, more than 35% of the total number of Registrable Securities held by all Holdersaccordance with this Agreement.
(b) Each The Company shall not be required to effect or take any action to effect a registration pursuant to this Section 2.2:
(i) before the earlier of (A) April 22, 2009 or (B) the end of the Lock-Up Period (as defined in Section 2.12(a)) applicable to the Preferred Holders;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective (which, for the avoidance of doubt, shall mean that the registrations shall have been continuously effective for one hundred eighty (180) calendar days, or until all Registrable Securities covered thereby have been sold, if earlier);
(iii) if the Demand Request shall specify the number Holders propose to dispose of Registrable Securities proposed that may be immediately registered on Form S-3 pursuant to be sold. Subject a request made pursuant to Section 4.01(g), 2.4 below;
(iv) during the period starting with the date ninety (90) days before the Company’s good faith estimate of the date of filing of (provided that the Company shall shall, within thirty (30) days of its receipt of the request from the Demand Holders, provide written notice to all Holders specified in Section 2.2(a) of its good faith intent to file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible within such ninety (90)-day period), and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities ending on the basis provided in any underwriting arrangements described above and date ninety (ii90) 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after following the effective date of the registration statement contemplated pertaining to a public offering of its securities by clause (ii) below) if (i) at the time the Company receives (or sixty (60) days if the Demand Requestpublic offering is not the Initial Public Offering), other than, in all cases, pursuant to a Special Registration Statement; provided that the Company or any of its Subsidiaries are engaged is actively employing in confidential negotiations or other confidential business activities, disclosure of which would be required in good faith all reasonable efforts to cause such registration statement (but would not be required if such registration statement were not filed)to become effective, and provided, in the case of a public offering other than the Initial Public Offering, that the Initiating Holders were permitted to register such shares as requested to be registered pursuant to Section 2.3 hereof without reduction by the underwriter thereof;
(v) if the Company shall furnish to the Demand Holders a certificate signed by the Chairman of the Board determines stating that in the good faith that such disclosure judgment of the Board of Directors of the Company, it would be materially seriously detrimental to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) shall be lifted, and the requested registration statement shall be filed forthwith, ifeffected at such time, 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), which event the Company shall promptly have the right to defer such filing for a period of not more than sixty (but 60) days after receipt of the request of the Demand Holders; provided that such right to delay a request shall be exercised by the Company not more than once 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 twelve (12) month period; or
(vi) in any particular jurisdiction in which the Company stating that would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance.
(c) A Holder’s rights to require registrations under this Section 2.2 shall expire if and for so long as the Company holder is deferring such filing legally able to sell all of its Registrable Securities in any 90-day period pursuant to this Section 4.01(g) and a general statement of Rule 144 or any successor exemption under 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceAct.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestSubject to the provisions of this Section 3.1, in writing Section 3.3 and Section 3.5, at any time and from time to time after the 30th day following the filing of the Company’s Annual Report on Form 10-K for the year ended December 31, 2024, Demand Stockholders (each, a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand RequestDemand”), that the Company effect the ) for registration under the Securities Act of all or part an amount of its or their Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by all such Requesting Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”). Notwithstanding ) and thereupon the foregoingCompany will, no Demand Request will be effective hereunder unless subject to the proposed terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register 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) the resale of all Registrable Securities that are not covered by an existing Registration Statement for an offering to be sold by made on a continuous basis pursuant to Rule 415 promulgated under the Holders requesting Securities Act;
(iii) all other Registrable Securities which the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” Company has been requested to register pursuant to Section 4.01(f3.1(b); and
(iv) hereof) represent, all shares of Common Stock which the Company may elect to register in the aggregate, more than 35% of the total number connection with any offering of Registrable Securities held by pursuant to this Section 3.1, but subject to Section 3.1(f); all Holdersto the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional shares of Common Stock, if any, to be so registered.
(b) Each A Demand Request shall specify specify: (i) the aggregate number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) Business Days after receipt of a Demand, the Company shall give written notice of such Demand Request are excluded from to all other Stockholders. Subject to Section 3.1(f), the applicable Company shall include in the Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, covered by such Demand all Registrable Securities with respect to each such exclusion, to which the Company has received a written request one additional for inclusion therein within five (5) Business Days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand Registrationas set forth in this Section 3.1(b).
(c) A registration will Each Stockholder shall be entitled to three (3) Demand Registrations. Notwithstanding anything to the contrary herein, to the extent there is an effective Shelf Registration Statement under Section 3.3 covering all of the Stockholder’s or Stockholders’ Registrable Securities, such Stockholder or Stockholders shall not count as have rights to make a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registrationthis Section 3.1.
(d) Demand Registrations shall be on such appropriate registration form of the SEC for which the Company is eligible, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, as shall be selected by the Requesting Holders can request Stockholders and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within three (3) months of a “firm commitment” underwritten offeringUnderwritten Offering (other than a Block Trade Offering that is not marketed) in which all Piggyback Stockholders (as hereinafter defined) were given “piggyback” rights pursuant to Section 3.2 (subject to Section 3.2(b)) and at least 50% of the number of Registrable Securities requested by such Piggyback Stockholders to be included in such Underwritten Offering were included, (B) within three (3) months of any other Demand Registration or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements; provided, that the Company shall use its reasonable best efforts to obtain such financial statements as promptly as practicable. If In addition, the Company shall be entitled to postpone (upon written notice to all Demand Stockholders) the filing or the effectiveness of a registration statement for any Demand Registration for a reasonable period of time not to exceed 60 days in succession or 90 days in the aggregate in any 12-month period, 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, including a financing, acquisition, corporate reorganization or other similar transaction or other material event or circumstance affecting the Company or its securities, and that the disclosure of such information at such time would be detrimental to the Company or the holders of its equity interests. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, (i) 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 3.4 and (ii) the Company shall not file or cause the effectiveness of any other registration statement for its own account or on behalf of other Stockholders.
(f) If, in connection with a Demand Registration, any managing underwriter or, if such Demand Registration is not an Underwritten Offering, a “firm commitment” underwritten offering, the Requesting Holders of nationally recognized independent investment bank selected by Stockholders holding a majority of the Registrable Securities included in such Demand Registration, reasonably acceptable to the Company, advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be registered in a connection with such Demand Registration shall select would adversely affect the investment banking firm or firms to manage the underwritten offering, provided that such selection shall be subject to the consent marketability of the CompanyRegistrable Securities sought to be sold pursuant thereto, which consent then the Company shall not include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be unreasonably withheld. No Person may participate sold without such adverse effect as follows and in any registration pursuant to Section 4.01(a) unless such Person the following order of priority: (i) agrees first, up to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration by the Stockholders and the number of shares of Common Stock sought to all other Investors, who shall have be included in such registration or Underwritten Offering by the right, exercisable by written notice holders of registration rights pursuant to the Company within 20 days of their receipt Fortress Registration Rights Agreement which, in the opinion of the Company’s noticeunderwriter or investment bank can be registered or sold without adversely affecting the marketability of the offering, pro rata on the basis of the number of shares of Registrable Securities or Common Stock, as applicable, requested to elect to include in be included by the Stockholders requesting such Demand Registration such portion and the holders of their Registrable Securities as they may request. All Holders requesting registration rights pursuant to have their Registrable Securities the Fortress Registration Rights Agreement, (ii) second, securities the Company proposes to sell and (iii) third, all other securities of the Company duly requested to be included in a Demand Registration in accordance with such registration statement, pro rata on the preceding sentence shall be deemed basis of the amount of such other securities requested to be “Requesting Holders” for purposes of this Section 4.01(f)included or such other method determined by the Company.
(g) The Company may defer the filing (but not the preparation) of Any time that a registration statement required by Section 4.01(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 RequestRegistration involves an Underwritten Offering, 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 determines in good faith Requesting Stockholders that such disclosure would be materially detrimental to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 hold a majority of the Registrable Securities held by included in such Underwritten Offering shall select the Requesting Holders investment banker or investment bankers and for managers (which registration was previously requested may withdraw such Demand Request by giving notice shall be reasonably acceptable to the Company; if withdrawn, ) that will serve as lead and co-managing underwriters with respect to the Demand Request shall be deemed not to have been made for all purposes offering of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncesuch Registrable Securities.
Appears in 1 contract
Sources: Investor Rights Agreement (FTAI Infrastructure Inc.)
Demand Registration. (a) Any Following the date that is 180 days after the completion of an IPO, upon the written request of Investor may request, in writing Securityholders holding a majority of the Registrable Securities then held by all Investor Securityholders (a the “Demand RequestRequesting Securityholders”), requesting that the Company effect the registration of all or a portion of the Registrable Securities then held by the Requesting Securityholders, the Company will thereupon use commercially reasonable efforts to file, as promptly as reasonably practicable, a registration statement with the Commission and thereafter will use commercially reasonable efforts to effect the registration of the Registrable Securities which the Company has been so requested to register by such Requesting Securityholders, provided, however, that:
(i) when the Company is not eligible to use a Shelf Registration Statement, such Requesting Securityholders’ request for registration relate to Registrable Securities that have an aggregate anticipated price to the public of at least $10,000,000 (before Selling Expenses), and
(ii) when the Company is eligible to use a Shelf Registration Statement, such Requesting Securityholders’ request for registration relate to Registrable Securities that have an aggregate anticipated price to the public of at least $5,000,000 (before Selling Expenses). Following receipt of such notice from the Requesting Securityholders, the Company shall, within ten (10) days following the date such request is received by the Company, notify, pursuant to Section 4 hereof, all Investor Securityholders from whom requests for registration were not initially received, and such holders shall be entitled, provided that a holder notifies the Company within 20 days of the date notice is given by the Company, to request that the Company include in the registration all or a portion of their Registrable Securities. Each registration requested pursuant to this Section 2(a) shall be (i) effected by the filing of a registration statement with the Commission on Form S-1 or a Shelf Registration Statement, and (ii) filed pursuant to Rule 415 under the Securities Act of all (or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold an equivalent rule then in effect) if so requested by the Holders requesting Requesting Securityholders, or the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all HoldersCompany otherwise deems it appropriate.
(b) Each Demand Request Notwithstanding the foregoing, the Company shall specify not be obligated to effect, or take any action to effect, any registration pursuant to Section 2(a) under the following circumstances:
(i) if the Company shall have previously effected a registration, notice of which shall have been given to all Investor Securityholders holding Registrable Securities pursuant to Section 4 hereof, and all Investor Securityholders wishing to do so were permitted to register all Registrable Securities they requested to register, then the Company shall not be required to effect a registration pursuant to Section 2(a) until a period of 180 days shall have elapsed from the effective date of the most recent such previous registration; or
(ii) after the Company shall have effected four (4) registrations requested by Investor Securityholders pursuant to Section 2(a) hereof; or
(iii) if the Company shall have previously effected two (2) registrations requested by Investor Securityholders pursuant to Section 2(a) hereof during the 12-month period immediately preceding the Company’s receipt or a request for registration pursuant to Section 2(a).
(c) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities effected by the Company pursuant to Section 2(a) hereof.
(d) If the registration so requested by the Requesting Securityholders involves an offering of the securities so being registered to be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing under underwriting terms appropriate for such a transaction, and the lead managing underwriter (the “managing underwriter”) of such underwritten offering informs the Company that, in its opinion, marketing factors make it advisable to reduce the number of Registrable Securities proposed to be sold. Subject included in the distribution under this Section 2, then the Company will notify the Requesting Securityholders and the other requesting Investor Securityholders of the same, and then will include in the registration not more than the maximum number of shares that the managing underwriter deems advisable, any such reduction in the number of Registrable Securities shall be made first among the Investor Securityholders other than the Requesting Securityholders and then, if further reductions are required, among the Requesting Securityholders, in each case in proportion to their respective holdings of Registrable Securities; provided that if such reductions result in the Requesting Securityholders being able to sell less than 50% of the Registrable Securities that were the subject of the requested registration, upon such reduction the holders of Registrable Securities shall be granted an additional right to demand registration of such securities under this Section.
(e) Notwithstanding the foregoing obligations, if the Company notifies the Investor Securityholders requesting a registration pursuant to Section 4.01(g)2(a) that, in the good faith judgment of the Company, it would be materially detrimental to the Company for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, or both, then the Company shall file have the right to defer taking action with respect to such filing for a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within period of not more than 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause initial request of the same to be declared effective Requesting Securityholders is received by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingCompany; provided, however, that the Company need effect only two may not invoke this right more than once in any twelve (212) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationmonth period.
(cf) A registration will not count as a Demand Registration until it has become effective (unless If requested by the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an underwriters for any underwritten offering of Registrable Securities pursuant to a registration is interfered requested under Section 2(a), the Company and all Investor Securityholders proposing to distribute their Registrable Securities through such underwriting will enter into an underwriting agreement with such underwriters in form and substance reasonably satisfactory to the Company, such agreement to contain such representations and warranties by the Company and such Investor Securityholders and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, customary indemnification and contribution provisions. If any stop order, injunction or other order or requirement Investor Securityholder who has requested inclusion of Registrable Securities pursuant to Section 2(a) disapproves of the SEC terms of the underwriting agreement or other governmental agency or courtthe underwriting, such registration will holder may elect to withdraw therefrom by notifying the Company and the managing underwriter. The Registrable Securities so withdrawn shall also be deemed not to have been effected and will not count as a Demand Registrationwithdrawn from registration.
(dg) If, at any time after requesting registration pursuant to Section 2(a) and prior to the effective date of the registration statement filed in connection with such registration request, Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of Securityholders holding a majority of the Registrable Securities to be registered in a Demand Registration shall select the investment banking firm or firms determine for any reason not to manage the underwritten offering, provided that register 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand RequestSecurityholders may, the Company shall promptly (but in any event within 10 days) at their election, give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice determination to the Company. The Company within 20 days shall then be relieved of their receipt of the Company’s notice, its obligations to elect to include in such Demand Registration such portion of their register any Registrable Securities as they may in connection with such Requesting Securityholders’ registration request. All Holders requesting , and the Requesting Securityholders shall forfeit their right to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed one demand registration statement pursuant to be “Requesting Holders” for purposes of this Section 4.01(f2 (but the Company shall not be relieved of its obligation to pay the Registration Expenses in connection therewith as provided in Section 2(c) hereof).
(gh) In connection with the first request for registration pursuant to Section 2(a), the Company may, within 10 days after its receipt of such request, give the Requesting Securityholders notice that it is the good faith intention of the Company to register securities for sale for its own account. Thereafter, the provisions of Section 4 shall govern, and the Requesting Securityholders’ registration request under Section 2(a) shall be deemed rescinded. The Company may defer the filing (Requesting Securityholders shall again be entitled to request such registration under Section 2(a), but not sooner than the preparationearlier of (i) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 180 days after the effective date of the Company’s registration statement contemplated by clause of securities for its own account, and (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 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 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 determination (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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), which 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 4.01(g) and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificate, notify the holders of a majority of the Registrable Securities 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 Securities) not to have been made for all purposes proceed with its registration of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncesecurities.
Appears in 1 contract
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that If the Company shall be requested by the Stockholder at any time to effect the registration under the Securities Act of all or part of its or their Registrable Securities Shares (a “"Demand ------ Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g"), the Company shall file a promptly use its best efforts to effect such ------------ registration statement under the Securities Act of the Registrable Shares and to effect have the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (registration statement filed by the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be Company hereunder declared effective by the SEC Commission within 90 days of any requested filing (or, if eligible, the "Demand Date") and make any other subsequent filings to become automatically keep such registration statement effective) as promptly as practicable after such filing; provided, however, that the Company need shall not be obligated to effect only any registration under the Securities Act except in accordance with the following provisions:
(a) the Company shall not be obligated to use its best efforts to file and cause to become effective (i) more than two (2) Demand Registrations registration statements initiated pursuant to Demand Requests made by Holders this Section; and (ii) any registration within twelve months of Registrable Securities pursuant any other registration required under this Section;
(b) A registration statement will not be deemed to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to have been effected as a Demand Request are excluded from Registration unless it has been declared effective by the applicable Demand Registration pursuant to Section 4.01(e) below, Commission and the Holders shall have the right, Company has complied in all material respects with all of its obligations under this Agreement with respect to each such exclusion, to request one additional Demand Registrationthereto.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the 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 this Section if at the time of such request the Company is engaged, or has performed its obligations hereunder in all material respectsfixed plans to engage within 60 days of the time of such request, in a firm commitment underwritten public offering of Primary Shares in which case the Stockholder may include Registrable Shares pursuant to Section 2.2; and
(d) with respect to any registration pursuant to this Section, the Company may include in such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration)registration any Primary Shares or Other Shares; provided, however, that if, after it has become effective, an if any managing underwriter for the public offering of Registrable Securities pursuant to a registration is interfered with contemplated by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise advises the Company or the Requesting Holders in writing that the inclusion of such securities will materially Primary Shares and adversely affect the price or success of the 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 Securities Other Shares proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effectregistration would interfere with the successful marketing (including pricing) of all such securities, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal then the number of shares which the Company is so advised can be sold in such offering without a Material Adverse Effect Primary Shares and such shares shall be allocated pro rata among the Requesting Holders on the basis of the number of Registrable Securities requested Other Shares proposed to be included in such registration shall be included in the following order:
(i) first, the Registrable Shares, pro rata based upon the ----- number of Registrable Shares (based upon Common Stock equivalents) owned by each holder thereof at the time of such Requesting Holder.registration; and
(fii) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable A requested registration under this Section may be rescinded by written notice to the Company within 20 days of their receipt of by the Company’s notice, to elect to include in such Demand Registration such portion of their Registrable Securities Stockholder. Such rescinded registration shall not count as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 initiated pursuant to this Section 4.01(gfor purposes of paragraph (a) shall be lifted, and the requested registration statement shall be filed forthwith, ifabove.
(e) The Stockholder may, in the case of a deferral notice delivered pursuant to clause paragraph (ia) of the preceding sentenceabove, elect that such registration cover an underwritten offering. Upon such election, the negotiations Stockholder shall select one or other activities are disclosed or terminatedmore nationally recognized firms of investment banks to act as the managing underwriters and shall select any additional investment banks to be used in connection with such offering, or, in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), the Company shall promptly (but in any event within ten days), upon determining to seek provided that 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice investment banks must be reasonably satisfactory to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer shall, together with the filing of Stockholder and any other parties proposing to sell shares in such offering, enter into a particular registration statement pursuant to this Section 4.01(g) only oncecustomary underwriting agreement with such underwriters.
Appears in 1 contract
Sources: Registration Rights Agreement (Fibernet Telecom Group Inc\)
Demand Registration. (a) Any Investor may requestFollowing the six month anniversary of the closing of the Company’s IPO, in writing one or more Requesting Stockholders shall be entitled to make a written request of the Company (a “Demand RequestDemand”), that the Company effect the ) for registration under the Securities Act of all or part an amount of its or their Registrable Securities that, in the aggregate taking into account all of the Requesting Stockholders, equals or is greater than the Registrable Amount (based on the number of Registrable Securities outstanding on the date such Demand is made) (a “Demand Registration”). Notwithstanding ) and thereupon the foregoingCompany will, no Demand Request will be effective hereunder unless subject to the proposed terms of this Agreement, use its commercially reasonable efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the offer and sale of the Registrable Securities which the Company has been so requested to be sold register by the Holders requesting Requesting Stockholders for disposition in accordance with the Demand Registration intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” Company has been requested to register pursuant to Section 4.01(f2.1(b); and
(iii) hereof) represent, in the aggregate, more than 35% all equity securities of the total number Company which the Company may elect to register in connection with any offering of Registrable Securities held by pursuant to this Section 2.1; all Holdersto the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Shares, if any, to be so registered.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person specify: (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 aggregate number of Registrable Securities requested to be included registered in such registration by each Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, if then known and (iii) the identity of the Requesting Holder.
Stockholder (for Requesting Stockholders). Within five (5) Upon business days after receipt of any Demand Requesta Demand, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (orStockholders, 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 determines in good faith that such disclosure would be materially detrimental any. Subject to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g2.1(h), the Company shall promptly 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 (but 5) business days after the Company’s notice required by this paragraph has been delivered. Such written request shall comply with the requirements of a Demand as set forth in this Section 2.1(b).
(c) Demand Registrations shall be on (i) Form S-1 or any event within ten dayssimilar long-form registration (“Long-Form Registration”), upon determining (ii) Form S-3 or any similar short form registration, if such short form registration is then available to seek such deferralthe Company, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating that or (iii) Form S-3ASR if the Company is deferring such filing pursuant to this Section 4.01(ga Well-Known Seasoned Issuer (a Demand Registration under each of clauses (ii) and (iii), a general statement of “Short-Form Registration”), in each case, reasonably acceptable to the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificate, the holders of Requesting Stockholders holding a majority of the Registrable Securities held by included in the Requesting Holders and for which registration was previously requested may withdraw such applicable Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this AgreementRegistration. The Company may defer the filing of a particular registration statement pursuant shall not be required to this Section 4.01(geffect more than two (2) only onceLong-Form Registrations per fiscal year.
Appears in 1 contract
Sources: Registration Rights Agreement (Palomar Holdings, Inc.)
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that At any time after the Company effect shall have consummated a firm commitment underwritten public offering of the registration Common Stock of the Company under the Securities Act Act, the holders of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(fi) hereof) represent, in the aggregate, more than 35constituting at least 30% of the total number shares of Registrable Securities then outstanding and (ii) having a minimum anticipated offering price of $5,000,000 may request the Company to register under the Act all or any portion of the shares of Registrable Securities held by such requesting Holder or Holders for sale on Form S-1 in the manner specified in such notice. Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 1.2:
(i) during the period starting with the date sixty (60) days prior to the Company's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration (but in any event no greater than three hundred sixty (360) days after a request is made under this Section 1.2); provided that the Company is actively employing in good faith all Holdersreasonable efforts to cause such registration statement to become effective;
(ii) if the requesting Holders do not request that such offering be firmly underwritten by underwriters reasonably acceptable to the Company;
(iii) if the Company and the requesting Holders are unable to obtain the commitment of the underwriter described in clause (ii) above to firmly underwrite the offering; or
(iv) if in the good faith judgment of the Board of Directors of the Company, such registration would be seriously detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, in which case the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for a period of not more than 180 days after receipt of the request of the requesting holders, and, provided further, that the Company shall not defer its obligation in this manner more than once in any eighteen-month period.
(b) Each Demand Request shall specify the number Following receipt of Registrable Securities proposed to be sold. Subject to any notice under this Section 4.01(g)1.2, the Company shall file a registration statement under the immediately notify all holders of Registrable Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) from whom notice has not been received and shall use all commercially reasonable its best efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 register under the terms Act, for public sale in accordance with the method 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included disposition specified in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effectnotice from requesting holders, the Registrable Securities 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 Securities requested to be included specified in such registration notice (and in all notices received by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event from other holders within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 15 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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.of
Appears in 1 contract
Demand Registration. (a) Any Investor may If any time following the expiration of six months after the consummation of an initial offering of Common Stock by the Company to the general public on a primary basis that has been registered on Form S-1, S-2 or S-3 (or any successor forms) under ▇▇▇ Securities Act (a "Qualifying IPO"), the Company shall receive a written request from any Weinstein Shareholder(s) owning Weinstein ▇▇▇▇▇▇ ("Initiating Shareholder") th▇▇ ▇▇▇ Company file a Registration Statement covering the registration of the amount of Weinstein Shares specified in the written ▇▇▇▇▇▇▇ of the Initiating Shareholder, then the Company shall (i) within five (5) days of the receipt of such registration request, give written notice of such registration request to all Weinstein Shareholder(s) owning Weinstein ▇▇▇▇▇▇, and (ii) use its commerciall▇ ▇▇▇▇▇▇▇ble efforts to effect, as soon as practicable and in writing (a “Demand Request”)any event not more than 120 days after receipt of such registration request, that the Company effect the registration under of such Weinstein Shares and shall include in suc▇ ▇▇▇▇▇▇▇ation all Weinstein Shares with respect to which th▇ ▇▇▇▇▇▇▇ receives, within the Securities Act twenty (20) days immediately following the receipt by the Weinstein Shareholder(s) of all or part of its or their Registrable Securities (such notice f▇▇▇ ▇▇▇ ▇ompany, a “Demand Registration”request for inclusion in the registration from the Weinstein Shareholder(s). Notwithstanding Each such reque▇▇ ▇▇▇▇ ▇ny of the foregoing, no Demand Request will be effective hereunder unless Weinstein Shareholder(s) of Weinstein Sha▇▇▇ ▇▇▇ ▇nclusion in the reg▇▇▇▇▇▇▇▇▇ shall also specify the aggregate amount of Weinstein Shares proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holdersregistered.
(b) Each Demand Request If the Initiating Shareholder intends to distribute the Weinstein Shares covered by its request by ▇▇▇▇▇ ▇f an underwritten public offering, it shall specify so advise the number Company as a part of Registrable Securities proposed its request made pursuant to Section 2.2(a) hereof and the Company shall include such information in its written notice to the Weinstein Shareholder(s) required under s▇▇▇ ▇▇▇▇▇on. In the event that the Initiating Shareholder intends to distribute the Weinstein Shares by means of an underwritten o▇▇▇▇▇▇▇, the right of any of the Weinstein Shareholder(s) to include his W▇▇▇▇▇▇▇▇ Shares in such registration shall be ▇▇▇▇▇▇▇▇ned upon such Weinstein Shareholder(s) participation in such ▇▇▇erwriting and the inclusion of such Weinstein Shareholder(s) Weinstein Shares ▇▇ ▇▇▇ ▇nderwriting to the ▇▇▇▇▇▇ provided herein. All Weinstein Shareholder(s) proposing to sel▇ ▇▇▇▇▇▇▇in Shares through such underwriting (▇▇▇▇▇▇ing the Company as provided in Section 2.2(b) of this Shareholders Agreement and any other holder of securities permitted to participate in such registration pursuant to this Section 2.2(b)) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected by the Initiating Shareholder for such underwriting (provided the same are underwriters of recognized national standing reasonably acceptable to the Company), upon the terms and conditions agreed upon between the Company and such underwriter(s). Notwithstanding any other provision of this Section 2.2(b), if the underwriter(s) advise the Initiating Shareholder in writing that marketing or other factors require that less than 100% of the Weinstein Shares requested by the Weinstein ▇▇▇▇▇▇older(s) owning Weinstein ▇▇▇▇▇▇ ▇e included in the under▇▇▇▇▇▇▇, then the Company shall so advise all Weinstein Shareholder(s) owning Weinstein ▇▇▇▇▇▇ ▇hat would otherwise be ▇▇▇▇▇▇▇▇▇ten pursuant hereto, and the amount of Weinstein Shares that may be included in ▇▇▇ ▇▇▇▇▇writing shall be allocated among all Weinstein Shareholder(s) thereof, includi▇▇ ▇▇▇ ▇▇itiating Shareholder, in proportion (as nearly as practicable) to the amount of Weinstein Shares which each of the Weinst▇▇▇ ▇▇▇▇▇holder(s) requested be inc▇▇▇▇▇ ▇▇ such registration. If the amount of Weinstein Shares to be sold. Subject underwritten has n▇▇ ▇▇▇▇ ▇o limited, the Company may include securities for its own account (or for the account of other holders) in such registration if the underwriter(s) so agree and to Section 4.01(gthe extent that, in the opinion of such underwriter(s), the Company shall file a registration statement under inclusion of such additional amount will not adversely affect the Securities Act to effect offering of the Demand Registration as promptly as possible and Weinstein Shares included in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationregistration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant The Weinstein Shareholder(s) owning Weinstein ▇▇▇▇▇▇ ▇ill be entitled to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 requ▇▇▇ ▇▇▇▇▇ant to this Section 4.01(g2.2 one (1) shall be liftedregistration on Form S-1 or any similar long- form registration and one (1) registration on Form S-3 or similar short-form registrations, 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), the Company shall promptly (but in no event may Weinstein Shareholder(s) be entitled to reques▇ ▇▇▇▇ ▇▇an one (1) such registration 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once12-month period.
Appears in 1 contract
Demand Registration. (a) Any Investor may request, Except as provided in writing (a “Demand Request”Section 2.1(b), upon the Investor’s written request that the Company effect pursuant to this Section 2 the registration of the Investor’s Registrable Securities under the Securities Act (which request shall specify the number of Registrable Securities to be registered), the Company shall use its best efforts to effect the registration under the Securities Act of all or part of its or their the Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all HoldersInvestor which the Company has been so requested to register.
(b) Each Demand Request The Company shall specify not be obligated to take any action to effect any registration requested by the number of Registrable Securities proposed to be sold. Subject Investor pursuant to Section 4.01(g), 2.1(a) above after the Company shall file has effected one registration pursuant to this Section 2 and such registration has been declared or ordered effective.
(c) Notwithstanding any other provision hereof to the contrary, a registration statement under the Securities Act requested pursuant to effect the Demand Registration as promptly as possible this Section 2 shall not be deemed to have been effected (i) unless it has become effective and in any event within remains effective for at least 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingexpiration of any lock-up period; provided, however, that a registration which does not become effective after the Company need effect only two (2) Demand Registrations pursuant has filed a registration statement with respect thereto solely by reason of the refusal by the Investor, in his sole discretion, to Demand Requests made proceed with such registration shall be deemed to have been effected by Holders the Company at the request of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, Investor unless the Holders Investor shall have the rightelected to pay all Company Registration Expenses (as defined in Section 5 below) in connection with such registration, with respect to each such exclusion, to request one additional Demand Registration.
or (cii) A registration will not count as a Demand Registration until if after it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or court, such registration will be deemed not to have been effected and will not count as court for any reason other than a Demand Registrationmisrepresentation or an omission by the Investor.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 The Company shall not be unreasonably withheld. No Person may participate in obligated to effect any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 2 within 90 days after the effective date of the registration statement contemplated any underwritten public offering by clause (ii) below) if (i) at the time the Company receives the Demand Request, the Company or of any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such previous registration statement (but would not be required if such registration statement were not filed), and withdrawn at the Board 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 had determined to effect a registered underwritten public offering request of the Company’s Securities Investor. The Company may postpone 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 up to effect such offering. A deferral of 90 days the filing or the effectiveness of a registration statement for a registration pursuant to this Section 4.01(g) shall be lifted, and 2 if the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant financial advisor and/or underwriter 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), the Company shall promptly (but in any event within ten days), upon determining certifies 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 4.01(g) 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 Investor of the Registrable Securities held by the Requesting Holders and for which that such registration was previously requested may withdraw such Demand Request by giving notice would reasonably be expected to have a material adverse effect on the Company; provided, however, that in such event the Investor of Registrable Securities requesting such registration shall be entitled to withdraw such request and, if such request is withdrawn, such registration shall not count as the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular one permitted registration statement pursuant to under this Section 4.01(g) only once2 and the Company shall pay all Registration Expenses in connection with such postponed or withdrawn registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Unusual Machines, Inc.)
Demand Registration. (a) Any Investor At any time 180 days after the date of this Agreement and (i) for the period terminating on the first anniversary of the date of this Agreement, the Holders holding at least 5% of the then outstanding Common Stock which is Registrable Stock and (ii) thereafter Holders holding at least 2% of the outstanding Common Stock which is Registrable Stock (or Holders holding less than 2% of the outstanding Common Stock which is Registrable Stock who, using their reasonable efforts, during the six month period following notice by them to the Company of their desire to register shares of such Stock held by them, have been unable to increase such shares to be registered to 2%, in the aggregate) (the "Requesting Holders") may request, in writing (a “Demand Request”)written notice to the Company, that the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act covering the registration of such percentage of shares (at least 5%, 2% or less, as the case may be) of the Common Stock which is Registrable Stock then outstanding in the manner (e.g, underwritten) specified in such notice (a "Demand Notice"); provided, however, that shares of Registrable Stock referred to effect in clause (iii) of the definition thereof, together with shares issued with respect thereto pursuant to clauses (iv) and (v) of the definition thereof, shall not be counted for purposes of determining if a Holder has satisfied the applicable threshold for making a Demand Registration Notice. A registration effected pursuant to this Section 2 is referred to herein as a "Demand Registration". Following receipt of any Demand Notice under this Section 2, the Company shall (i) give, within 10 business days of receipt of such Demand Notice, each other Holder written notice that it will be filing a registration statement and advise such Holders that they may participate in such registration by promptly so notifying the Company and (ii) file as promptly as possible and practicable (but in any event within 90 60 days after receiving such Demand Notice) a Demand Request (the “Required Filing Date”) registration statement and shall use all commercially reasonable its best efforts to cause the same to be declared effective by as soon as reasonably practicable (but in any event within 120 days of receiving such Demand Notice) a registration statement providing for the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingoffer and sale of the Registrable Stock that the Requesting Holders and the other Holders have requested be registered in accordance with the manner of disposition specified in the Demand Notice of the Requesting Holders; provided, however, that the Company need effect only two participation of a Holder (2other than a Requesting Holder) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to in a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(eclause (i) belowof this sentence shall not be deemed to be a Demand Registration of such participating Holder.
(b) If the Requesting Holders intend to have the Registrable Stock distributed by means of an underwritten offering, the underwriter or underwriters shall be selected by Requesting Holders holding a majority of the shares of Registrable Stock to be sold by such Requesting Holders after consultation with all Requesting Holders, subject to approval by the Company, which approval shall have the right, with respect to each such exclusion, to request one additional Demand Registrationnot be unreasonably withheld.
(c) A registration will Notwithstanding any provision of this Agreement to the contrary,
(i) the Company shall not count as be required to effect a Demand Registration until it has become effective if the Demand Notice related thereto is delivered during the period commencing 45 days prior to the estimated date of filing by the Company of a registration statement pertaining to a public offering of equity securities of the Company (unless a "Company Registration Statement") which are the same as or similar to, or convertible into or exchangeable for, Common Stock of the Company (other than a registration statement on Form S-8 or successor form) and ending on the date of the effectiveness of such Company Registration Statement; provided, however, that in no event shall the Company be required to
file a registration statement pertaining to a Demand Registration at any time prior to 90 days after the date of the effectiveness of any Company Registration Statement;
(ii) the Company shall not be required to effect more than one Demand Registration in any six-month period; and
(iii) if the Company shall furnish to the Requesting Holders withdraw all their Registrable Securities and a certificate signed by the chief executive officer of the Company has performed stating that in the good faith opinion of a majority of the board of directors of the Company such registration would require the Company to disclose a material financing, acquisition or other corporate development and that such disclosure at such time is not in the best interests of the Company and its obligations hereunder stockholders, then the Company may postpone the filing or effectiveness of a registration statement for such period (the "Delay Period") as the board of directors shall approve; provided, however, that (i) no single Delay Period may exceed 90 consecutive days; (ii) the Delay Periods in all material respectsany twelve consecutive months may not exceed, in which case the aggregate, 180 days; and (iii) no Delay Period may commence fewer than 60 days following the end of a prior Delay Period.
(d) Each Original Stockholder will be entitled to two Demand Registrations with respect to the Registrable Stock held by such demand will count Original Stockholder; upon transfer or assignment of any or all of such Registrable Stock in accordance with Section 9 hereof, the Original Stockholder shall notify the Company, in accordance with Section 9, as a to whether or not the Original Stockholder is assigning Demand Registration unless rights under this Agreement. As a result, the Requesting Holders pay all Company shall not be obligated to effect more than two Demand Registrations in respect of the Registrable Stock of each Original Stockholder (including for this purpose any Demand Registration Expenses, as hereinafter defined, rights in connection respect of such Registrable Stock which have been assigned in accordance with such withdrawn registrationthe provisions of Section 9 hereof); provided, however, that if, after it has become effective, an a Demand Registration shall not be deemed to have been effected for a particular Holder for purposes of this Section 2(d) unless (i) the Registration Statement filed in connection with such Demand Registration shall have been declared effective by the Commission; (ii) such Registration Statement shall have remained effective for the period set forth in Section 4; and (iii) the offering of Registrable Securities Stock pursuant to a such registration is interfered with by shall not be subject to any stop order, injunction or other order or requirement of the SEC Commission that is not lifted or released (other than any such stop order, injunction or other governmental agency requirement of the Commission prompted by any act or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders omission of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registrationRequesting Holder).
(e) No securities If the Registrable Stock registered pursuant to a Demand Registration is to be sold for in one or more firm commitment underwritten offerings, and the account sole or managing underwriter, as the case may be, of any Person (including such underwritten offering advises the Company) other than a Requesting Holder shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). Furthermorethat, 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 sentenceits opinion, the total amount of Registrable Securities proposed Stock requested to be included in such registration will exceed the maximum amount (the "Maximum Demand Registration by Requesting Holders is sufficiently large Offering Size") of the Company's securities that can be marketed (1) at a price reasonably related to cause a Material Adverse Effectthe then current market value of such securities or (2) without otherwise materially and adversely affecting the entire offering, then the Company shall include in such registration, in the following priority up to the Maximum Demand Offering Size: (x) first, all of the Registrable Securities of the Requesting Holders Stock requested to be included in such Demand Registration shall equal registration by the number of shares which the Company is so advised can be sold in Requesting Holders pursuant to this Section 2, allocated, if necessary, for such offering without a Material Adverse Effect and such shares shall be allocated not to exceed the Maximum Demand Offering Size, pro rata among the Requesting Holders on the basis of the relative number of shares of Registrable Securities Stock each such Requesting Holder has requested to be included in such registration; and (y) second, all of the Registrable Stock requested to be included in such registration by Holders other than the Requesting Holders pursuant to this Section 2, allocated, if necessary, for such offering not to exceed the Maximum Demand Offering Size, pro rata among such non-Requesting Holders on the basis of the relative number of shares of Registrable Stock each such Requesting HolderHolder has requested to be included in such registration.
(f) Upon receipt The Company agrees not to effect any public or private sale, distribution or purchase of any Demand Requestof its equity securities which are the same as or similar to, or convertible into or exchangeable or exercisable for, Common Stock of the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investorsduring the 30-day period prior to, who shall have and the right90-day period beginning on, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 any registration statement contemplated filed pursuant to a Demand Registration. The foregoing sentence shall not apply to: (x) any such equity securities registered pursuant to a registration statement on Form S-4 (or successor form) in respect of a business combination, acquisition or similar transaction; (y) any shares of Common Stock issued by clause (ii) below) if (i) at the time the Company receives upon the Demand Request, exercise of an option or the Company conversion of a security outstanding on the filing date of any registration statement; and (z) any shares of Common Stock issued 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 determines in good faith that such disclosure would be materially detrimental options to the Company and its stockholders or (ii) prior purchase Common Stock granted pursuant to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering employee benefit plans of the Company’s Securities for , including, without limitation, 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once's [Equity Incentive Plan].
Appears in 1 contract
Sources: Registration Rights Agreement (Galileo International Inc)
Demand Registration. (a) Any Investor At any time following the Closing Date and so many times as may requestbe required for the disposition of all Registrable Securities, in writing (each of TDR and the Initiating Holders may give a “Demand Request”), that written request to the Company to effect the registration under the Securities Act of all or part any portion of its or their such Holder’s Registrable Securities (a “Demand Registration”). Notwithstanding the foregoingSecurities, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request written request shall specify the number of Registrable Securities proposed to be sold. Subject registered and the intended method of disposition thereof (each such registration shall be referred to herein as a “Demand Registration”); provided that, subject to Section 4.01(g2.1(d), the Company shall file a registration statement 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 Securities Act to effect the Demand Registration as promptly as possible and in any event Escrow Agreement, (y) within 90 days after receiving the effective date of a Demand Request previous Registration Statement (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) or such shorter period as promptly as practicable after such filing; provided, however, that the Company need effect only two (2may determine in its sole discretion) Demand Registrations pursuant to Demand Requests made by which the Holders were permitted to register the offer and sale under the Securities Act, and actually sold at least 75% of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any the Registrable Securities requested to be registered pursuant 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 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 Request are excluded from Registration, such registration shall occur on such form.
(b) At any time prior to the applicable effective date of the Registration Statement relating to such Demand Registration pursuant Registration, any requesting Holder may, upon notice to Section 4.01(e) belowthe Company, the Holders shall have the right, revoke their request in whole or in part with respect to each the number of shares of Registrable Securities requested to be included in such exclusion, to request one additional Demand 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 Holders included in such registration will have actually been sold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided that such Registration Statement shall not count as be considered a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become such Registration Statement becomes effective, an offering of Registrable Securities pursuant to a registration (1) such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, court and (2) less than 75% of the Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 66.67% of the Registrable Securities of the Holders sought to be included in such registration will be deemed not to have been effected and will not count as a Demand Registrationare included.
(de) Requesting Holders can request a “firm commitment” underwritten offeringThe 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. If a Demand Registration is involves a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, Public Offering and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the lead managing underwriter or underwriters shall advise advises the Company or and the Requesting selling Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). Furthermorethat, 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 sentenceits view, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 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 include in such registration, up to the Maximum Offering Size, first, all Registrable Securities requested to be registered by the Holders, based on the pro rata percentage of Registrable Securities held by such Holders (determined based on the aggregate number of Registrable Securities held by each such Requesting Holder) and second, any securities proposed to be registered by the Company.
(f) Upon receipt The Company may postpone for up to 60 days (i) the filing or effectiveness of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand a Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in Statement for a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders Shelf Registration or (ii) prior to receiving the Demand Request, commencement of a Shelf Public Offering if the Board had determined to effect a registered underwritten public offering of Directors of the Company’s Securities for Company determines in its reasonable good faith judgment that such Demand Registration, 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’s account ; (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 event TDR or the Initiating Holders, as applicable, shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for shall pay all registration expenses in connection with 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreementregistration. The Company may defer the filing delay a Demand Registration, Shelf Registration or Shelf Public Offering hereunder only twice in any period of a particular registration statement pursuant to this Section 4.01(gtwelve (12) only onceconsecutive months.
Appears in 1 contract
Demand Registration. (a) Any Investor may request2.1 Subject to the conditions of this Section 2, in writing (if the Company shall receive a “Demand Request”), written request from the Holder that the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act covering the registration of Registrable Securities for an offering with expected proceeds of at least Five Million dollars ($5,000,000), the Company will, as soon as practicable, use commercially reasonable efforts to effect such registration (including, without limitation, the Demand Registration 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 and any other governmental requirements or regulations) as promptly may be so requested and as possible would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request. Subject to the limitations set forth in Section 2.3 below, equity securities of Other Sellers or of the Company may be included in a registration statement effected pursuant to a registration request made by the Holder in connection with this Section 2.1.
2.2 The Company shall not be obligated to take any event within 90 action to effect any registration pursuant to this Section 2:
(a) after the Company has effected two (2) such registrations pursuant to this Section 2 and such registrations have been declared or ordered effective;
(b) during the period starting with the date of filing of, and ending on the date ninety (90) days after receiving immediately following the effective date of any registration statement pertaining to securities of the Company (other than a Demand Request (registration of securities in a Rule 145 transaction, a registration on a Form S-3 pertaining to a non-underwritten offering, or with respect to registration relating to an employee benefit plan on a Form S-8), provided that the “Required Filing Date”) and shall use all Company is actively employing in good faith commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, such registration statement to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.or
(c) A registration will not count as a Demand Registration until it has become effective (unless if the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering Holder proposes to dispose of shares of Registrable Securities that may be registered immediately on Form S-3 pursuant to a request made under Section 3 below.
2.3 If a registration pursuant to this Section 2 is interfered with by any stop orderfor a registered public offering involving an underwriting, injunction or other order or requirement the right of the SEC or other governmental agency or courtHolder to registration pursuant to this Section 2 shall be conditioned upon the Holder’s participation in the underwriting arrangements required by this Section 2 and the inclusion of the Holder’s Registrable Securities in the underwriting, such registration will be deemed not to have been effected and will not count as a Demand Registrationthe extent requested, to the extent provided herein.
(da) Requesting Holders can request The Company shall (together with the Holder and Other Sellers proposing to distribute their securities through such underwriting, if any) enter into and perform its obligations under an underwriting agreement in customary form with the managing underwriter selected or approved for such underwriting by the Company (which managing underwriter shall be reasonably acceptable to the Holder). Notwithstanding any other provision of this Section 2, if the managing underwriter advises the Company in writing that marketing factors require a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offeringlimitation of the number of shares to be underwritten, then the Requesting Holders Company shall so advise the Holder and any such Other Sellers of a majority the number of shares of Registrable Securities that may be included in the registration and underwriting, and such number of shares shall be allocated first to the Holder, and to the extent that after the Holder has included all of the Registrable Securities it desires to include in the registration, any excess shares shall be registered in a allocated among the Other Sellers. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(b) If any Demand Registration shall is an underwritten offering with respect to any issue of Registrable Securities, the Holder will select the investment banking firm banker or firms bankers and manager or managers of nationally recognized standing to manage administer the underwritten offering, provided that such selection shall be offering subject to the consent of the Company, which such consent shall not to be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a.
(c) unless such Person (i) agrees to sell such Person’s If the Holder of Registrable Securities on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers disapproves 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 sentenceunderwriting, the amount of Registrable Securities proposed Holder may elect to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable withdraw therefrom by written notice to the Company within 20 days and the managing underwriter. The Registrable Securities and/or other securities so withdrawn shall also be withdrawn from registration.
2.4 If with respect to the last registration permitted to be exercised by the Holder of their receipt Registrable Securities under Section 2.1, the Holder is unable to register all of its Registrable Securities because of the Company’s noticeoperation of Section 2.3(a) hereof, to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence Holder shall be deemed entitled to require the Company to effect one additional registration to afford the Holders an opportunity to register all such Registrable Securities. Such additional registration shall again be “Requesting Holders” for purposes subject to the provisions of this Section 4.01(f).
2; provided, that under no circumstances will the Holder be entitled to more than three (g3) The Company may defer registrations in the filing (but not the preparation) of a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental aggregate pursuant to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering provisions 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once2.
Appears in 1 contract
Demand Registration. At any time and from time to time ------------------- commencing one year after the Company has had a registration statement become effective and has become a reporting company under the Securities Exchange Act of 1934, as amended (a) Any Investor may request, in writing (a “Demand Request”the "Exchange Act"), that any one or more of the Holders, subject to the limitations set forth below, may request the Company to effect the registration under the Securities Act of some or all or part of its or their Registrable Securities ▇▇▇ Shares in accordance with this Section (a “Demand Registration”"Registration Demand"). Notwithstanding ; provided that, -------- notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), Executive may request the Company shall file to effect a registration in accordance with this Section at any time commencing six months after the Company has had a registration statement become effective and has become a reporting company under the Exchange Act. The Registration Demand shall specify whether the Holder(s) desires an underwritten offering or a shelf registration. The Company will promptly, but in any event within 20 days, give written notice of such requested registration and the intended method of distribution thereof to all Holders and thereupon the Company will use its best efforts to effect such registration under the Securities Act of (i) the ▇▇▇ Shares which the Company has been requested to effect register and (ii) all other ▇▇▇ Shares which the Demand Registration as promptly as possible and in any event Company has been requested to register by Holders thereof by written request given to the Company within 90 30 days after receiving the giving of such written notice by the Company. Thereafter, the Company will use its best efforts to keep the registration statement current and effective for a Demand Request period (the “Required Filing Date”"Registration Demand Period") of not less than six (6) months with respect to a Registration Demand in connection with an underwritten public offering and shall use all commercially reasonable efforts nine (9) months with respect to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filinga Registration Demand in connection with a shelf registration; provided, however, that the Company need shall not be obligated to -------- ------- effect only two any registration under the Securities Act under this Section 2 except in accordance with the following provisions:
(2a) Demand Registrations the Company shall not be obligated to file more than five registration statements initiated pursuant to Demand Requests made this Section 2 (not more than three of which may be in connection with an underwritten public offering) which become effective or are rescinded by the Holders without reimbursement referred to in the Section 2(f);
(b) the Company may delay the filing or effectiveness of Registrable Securities any registration statement for a period not to exceed 90 days after the date of a request for registration pursuant to this Section 4.01(a); provided2 if at the time of such request the Company is engaged, furtheror has fixed plans to engage within 45 days of the time of such request, that if any Registrable Securities requested to be registered pursuant to in a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.firm commitment underwritten public offering of Primary Shares;
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder shall be entitled once in all material respectsany six-month period to postpone for a reasonable period of time (but not exceeding 90 days) the filing of any registration statement required to be prepared and filed by it if the Board of Directors of the Company determines, in which case its reasonable judgment, that such demand will count as registration and offering would have a Demand Registration unless material adverse effect on the Requesting Holders pay all Registration ExpensesCompany;
(d) with respect to any registration pursuant to this Section 2, as hereinafter defined, the Company may include in connection with such withdrawn registration)registration any other Shares of the Company or a stockholder of the Company; provided, however, that ifif the managing -------- ------- underwriter advises the Company in writing that the inclusion of all such Shares would interfere with the successful marketing (including pricing acceptable to the Holders) of all such securities, after it has become effectivethen the number of Shares proposed to be included in such registration shall be included in the following order:
(i) first, an offering the ▇▇▇ Shares held by the Holders, pro rata ----- -------- based upon the total number of Registrable Securities ▇▇▇ Shares owned by each Holder at the time of such registration;
(iii) third, the Shares of other stockholders of the Company; -----
(e) Notwithstanding anything in this Section 2 to the contrary, the Company shall not be required to take any action pursuant to Section 2, including, without limitation, using its best efforts to effect the registration under the Securities Act of ▇▇▇ Shares, unless
(i) with respect to a Registration Demand for an underwritten offering, the offering includes at least 1,000,000 ▇▇▇ Shares (without taking into account adjustments made to Shares after the date hereof); or
(ii) with respect to a Registration Demand for a shelf registration, the offering includes at least 400,000 ▇▇▇ Shares (without taking into account adjustments made to Shares after the date hereof);
(f) a Registration Demand under this Section 2 may be rescinded by written notice to the Company by the Holder(s) initiating such request; provided, however, that such rescinded registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will shall not count as a Demand Registration.-------- ------- registration statement initiated pursuant to this Section 2 for purposes of paragraph (b) above if the Holder(s) initiating such request reimburse the Company for all reasonable out- of-pocket expenses incurred in complying with such request; and
(dg) Requesting Holders can request a “firm commitment” underwritten offering. If a with respect to any Registration Demand Registration is a “firm commitment” for an underwritten offering, the Requesting Holders of a majority of Company shall have the Registrable Securities right to be registered in a Demand Registration shall select the investment banking firm designate an underwriter or firms to manage the underwritten offering, underwriters; provided that the designation of such selection underwriter(s) shall be subject to the consent approval of the CompanyHolder(s) holding a majority of the ▇▇▇ Shares to be registered in the Registration Demand, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registrationwithheld unreasonably.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (ai) Any Investor may requestSubject to the applicable securities Laws, in writing from and after the Closing Date, subject to the terms and conditions hereof (a “Demand Request”), x) solely during any period that the Company effect is then-ineligible under applicable Laws to register Registrable Securities on Form F-3 pursuant to paragraph (c) or, if the Company is so eligible but has failed to comply with its obligations under paragraph (c) or (y) following the expiration of the Company’s obligation to keep the Shelf Registration Statement continuously effective pursuant to paragraph (c)(ii), but only if there is no Shelf Registration Statement then in effect, the Holders shall be entitled to make no more than one (1) written requests of the Company in any given calendar year and no more than two (2) in the aggregate (each, a “Demand”) for registration under the Securities Act of all or part an amount of its or their Registrable Securities then held by the Holders that equals or is greater than the Registrable Amount (a “Demand Registration”). Notwithstanding Thereupon the foregoingCompany will, no Demand Request will be effective hereunder unless subject to the proposed Registrable Securities terms of this Agreement, use its commercially reasonable efforts to be sold by effect such registration to permit or facilitate the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representoffer, in the aggregate, more than 35% sale and distribution of the total number of Registrable Securities held by all Holders.
(b) Each securities specified in such Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement as promptly as reasonably practicable under the Securities Act of the Registrable Securities which the Company has been so requested to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective register by the SEC Holders for disposition in accordance with the intended method of disposition stated in such Demand
(or, if eligible, to become automatically effectiveii) as promptly as practicable after such filing; provided, however, that A Demand shall specify: (i) the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders aggregate number of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a in such Demand Request are excluded from Registration; and (ii) the applicable Demand Registration pursuant to Section 4.01(eintended method(s) below, the Holders shall have the right, of disposition in connection with respect to each such exclusion, to request one additional Demand Registration.
(ciii) A Demand Registration shall not be deemed to have been effected (i) unless a registration will not count as statement with respect thereto has become effective and has remained effective for a period of at least (A) one hundred eighty (180) days or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder (provided, that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such registration statement at the request of the Company or the lead managing underwriter(s) pursuant to the provisions of this Agreement) or (B) in connection with a Demand Registration until that involves an Underwritten Offering, such longer period as, in the opinion of counsel for the lead managing underwriter, a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer, or (ii) if, (A) after it has become effective (unless and prior to the Requesting Holders withdraw sale of all their Registrable Securities and the Company has performed its obligations hereunder in all material respectsincluded therein, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expensesbecomes subject, as hereinafter definedprior to one hundred eighty (180) days after effectiveness, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency Governmental Authority, other than by reason of any act or courtomission by the Holders or (B) in connection with a Demand Registration that involves an Underwritten Offering, the conditions specified in the underwriting agreement or similar agreement entered into in connection with such registration will are not satisfied, other than as the result of a wrongful act, misrepresentation or breach of such agreement by the Holders.
(iv) The Company shall not be deemed not obligated to have been effected and will not count as (i) subject to the proviso of paragraph (a)(iii), maintain the effectiveness of a registration statement under the Securities Act filed pursuant to a Demand Registration.
, for a period longer than one hundred eighty (d180) Requesting Holders can request days or (ii) effect any Demand Registration (A) within six (6) months of a “firm commitment” underwritten offering. If a Demand Registration is a Underwritten Offering in which the Holders were offered “firm commitmentpiggyback” underwritten offering, the Requesting Holders of a majority rights pursuant to paragraph (b) (subject to paragraph (b)(ii)) and at least 50% of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 number of Registrable Securities proposed to be included in such Demand Registration requested by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration were included and were actually sold thereunder, or (B) within six (6) months of the completion of any other Demand Registration (including, for the avoidance of doubt, any Underwritten Offering pursuant to any Shelf Registration Statement) or (C) if, in the Company’s reasonable judgment, it is not feasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements of the Company; provided, that the Company shall equal use its commercially reasonable efforts to obtain such financial statements as promptly as practicable.
(v) The Company shall be entitled to postpone (upon written notice to the number Holders) the filing or the effectiveness of shares which a registration statement or to require the Holders to suspend the use of the prospectus for sales of Registrable Securities in respect of any Demand Registration in the event of a Blackout Period under clause (ii) of the definition thereof until the expiration of such Blackout Period. In the event of such Blackout Period, the Company shall deliver to the Holders a certificate signed by either the chief executive officer or the chief financial officer of the Company certifying that, in the good faith judgment of the Board, the conditions described in clause (ii) of the definition of Blackout Period have been met. Such certificate shall contain, to the extent practicable, an approximation of the anticipated duration of such Blackout Period.
(vi) If, in connection with a Demand Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the Company that, in its (their) opinion, the inclusion of all of the securities sought to be registered in connection with such Demand Registration would adversely affect the success thereof, then the Company shall include in such registration statement only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such adverse effect as follows and in such offering without a Material Adverse Effect and such shares shall be allocated pro rata among the Requesting Holders on the basis following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investorsby the Holders, who shall have which, in the right, exercisable by written notice to the Company within 20 days of their receipt opinion of the Company’s noticelead managing underwriter(s), to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with can be sold without adversely affecting the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 success thereof; and (ii) below) if (i) at second, the time securities 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 determines in good faith that such disclosure would be materially detrimental proposes to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncesell.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestIf the Company shall receive at any time after six (6) months after the effective date of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, in writing (stock purchase or similar plan or a “Demand Request”SEC Rule 145 transaction), a written request from (1) at least 30% of the Registrable Securities then outstanding (the "Initiating Holders") or (2) Quantum Industrial Partners LDC or SFM Domestic Investments LLC and, subject to Section 1.10, their permitted assigns (the "Initiating Series F Holders"), requesting that the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Act covering the registration of a portion of the Registrable Securities Act then outstanding, then the Company shall:
(i) within ten (10) days of the receipt thereof, give written notice of such request to all Holders; and
(ii) effect the Demand Registration as promptly soon as possible practicable, and in any event within 90 sixty (60) days of the receipt of such request, the registration under the Act of all Registrable Securities which the Holders request to be registered, subject to the limitations of subsection 1.2(b), and, in the event of a limitation pursuant to subsection 1.2(b), within fifteen (15) days of the mailing of such notice by the Company in accordance with Section 5.5.
(b) If the Initiating Holders or the Initiating Series F Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to subsection 1.2(a) and the Company shall include such information in the written notice referred to in subsection 1.2(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders or the Initiating Series F Holders, as the case may be. In such event, the right of any Holder or other holder of securities of the Company to include securities in such registration shall be conditioned upon such Holder's or holders' participation in such underwriting and the inclusion of such Holder's or holders' securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders or the Initiating Series F Holders, as the case may be, and such Holder or holder) to the extent provided herein. All Holders and other holders of securities of the Company proposing to distribute their securities through such underwriting shall (together with the Company and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by the Company. Notwithstanding any other provision of this Section 1.2, if the Company and the underwriter advise the Initiating Holders or the Initiating Series F Holders, as the case may be, in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Initiating Holders or the Initiating Series F Holders shall so advise all Holders of Registrable Securities and other holders of registration rights which would otherwise be underwritten pursuant hereto, and the number of shares of securities that may be included in the underwriting on behalf of each Holder or other holder shall be allocated pro-rata amongst the selling stockholders according to the total number of securities held by each such selling stockholder and entitled to inclusion therein on the basis of a registration rights agreement with the Company; provided that if marketing factors require a limitation of the number of shares to be underwritten in a registration requested by the Initiating Series F Holders, the Company shall reduce (to zero, if necessary), first as to the any Holders of Registrable Securities and other holders of registration rights who are not Initiating Series F Holders as a group, if any, and then, if such reduction is not sufficient, as to the Initiating Series F Holders as a group, pro rata within each group based on the number of Registrable Securities included in the request for registration, the amount of Registrable Securities to be included by each Holder in such registration. For purposes of allocation securities to be included in any offering, for any selling stockholder which is a partnership or corporation, the partners, retired partners and stockholders of such holder (and in the case of a partnership, any affiliated partnerships), or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "selling stockholder," and any pro-rata reduction with respect to such "selling stockholder" shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such "selling stockholder," as defined in this sentence.
(c) Notwithstanding the foregoing, if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 1.2 a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receiving a Demand Request (receipt of the “Required Filing Date”) and shall use all commercially reasonable efforts to cause request of the same to be declared effective by Initiating Holders or the SEC (orInitiating Series F Holders, if eligible, to become automatically effective) as promptly as practicable after such filingthe case may be; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if may not utilize this right more than once in any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registrationtwelve-month period.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offeringIn addition, the Requesting Holders of a majority of the Registrable Securities 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 Company shall not be unreasonably withheld. No Person may participate in obligated to effect, or to take any action to effect, any registration pursuant to this Section 4.01(a) unless such Person 1.2 after the Company has effected: (i) agrees two (2) registrations requested by the Initiating Holders pursuant to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above this Section 1.2, and (ii) completes and executes all questionnairestwo registrations requested by the Initiating Series F Holders, 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 Securities 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 Securitiesthis Section 1.2, and such registrations have been declared or ordered effective. For purposes of this Section 1.2, a proposed registration that is withdrawn due to a material adverse change in the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his Company's business or its Registrable Securities pursuant to such financial condition shall not count as a 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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). FurthermoreIn addition, 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, if the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice deliver to the Company within 20 days of their receipt of Initiating Holders or the Company’s noticeInitiating Series F Holders, to elect to include in such Demand Registration such portion of their Registrable Securities as they the case may request. All Holders be, requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) shall be lifted1.2, 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 the Chief Executive Officer of the Company stating that the Company is deferring such filing pursuant intends to this Section 4.01(gfile, within sixty (60) and a general statement days following the date of receipt of the reason for such deferral and an approximation request of Initiating Holders or the anticipated delay. Within 20 days after receiving such certificateInitiating Series F Holders, as the holders of case may be, a majority of the Registrable Securities held registration statement covering securities to be offered by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to Company on its own behalf, then the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to requested by this Section 4.01(g1.2 for so long as the Company in good faith intends to file a registration statement for the offering of securities on its own behalf (but in any event, a registration statement shall be filed within ninety (90) only oncedays following receipt of the request of the Initiating Holders or the Initiating Series F Holders, except as provided in paragraph (c) hereof). In the event the Company shall file a registration statement for the offering of securities on its own behalf as provided herein, the Holders shall be entitled to include Registrable Securities in such registration and offering, provided that the registration statement relates to shares of Common Stock of the Company and Registrable Securities are eligible under law for inclusion in such registration. In such event, the right of the Holders to inclusion of shares in such registration and offering shall be governed by the provisions of Section 1.3 hereof, except that (with respect to an offering governed by this paragraph (e)) in the event of an underwritten offering, if marketing factors require the limitation of the number of shares to be underwritten, the number of shares to be included in such underwritten registration and offering on behalf of the Holders and other holders of pari passu registration rights shall not constitute less than forty percent (40%) of the total number of securities included in such underwritten registration and offering.
Appears in 1 contract
Sources: Investor Rights Agreement (Crossworlds Software Inc)
Demand Registration. The Shareholders shall have the right to demand two (a2) Any Investor Registrations as provided herein. At any time after one (1) year from the date hereof and prior to the termination of this Agreement, any Shareholder or Shareholders holding Qualifying Shares may requestfurnish to Drew a written request that Drew effect a Registration on Form S-3, in writing or any similar successor short-form registration statement then available to Drew, and any related qualification or compliance with respect to the following Registrable Securities of such Shareholders:
(a “Demand Request”A) if such request is made prior to three (3) years from the date hereof (the "First Period"), that not more than an aggregate of Seven Hundred Fifty Thousand (750,000) shares less the Company effect the registration under the Securities Act number of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” shares previously registered pursuant to Section 4.01(f2(a)(A) hereof, but not less than an aggregate of Five Hundred Thousand (500,000) representshares, in and
(B) if such request is made after three (3) years from the aggregatedate hereof (the "Second Period"), more than 35% of the total number all shares of Registrable Securities held not previously sold by all Holders.such Shareholders, but not less than an aggregate of Five Hundred Thousand (500,000) shares. If Drew shall receive such notice, Drew shall:
(bi) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible (and in any event within 90 ten (10) days after receiving a Demand Request (receipt of any such notice) give written notice of the “Required Filing Date”) proposed Registration, and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligibleany related qualification or compliance, to become automatically effectiveall other Shareholders; and
(ii) as promptly soon as practicable practicable, effect such Registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Shareholder or Shareholders joining in such request as are specified in a written request given to Drew within twenty (20) days after receipt of such filingwritten notice from Drew; provided, however, that the Company need Drew shall not be obligated to effect only two (2) Demand Registrations any such Registration, qualification or compliance, pursuant to Demand Requests made this Section 2(b) hereof:
(A) if Form S-3, or a similar successor short-form registration statement, is not available to Drew for such offering by Holders the Shareholders; provided, however, that if such short-form registration does not become available to Drew within one hundred twenty (120) days after receipt by Drew of such written request, Drew shall effect such Registration on Form S-1 or a similar successor long-form registration statement promptly after expiration of such 120-day period;
(B) if the Shareholders propose to sell less than the aggregate minimum number of Registrable Securities set forth above; or
(C) if, (x) such request is made during the First Period, and a Registration has been previously effected by Drew pursuant to Section 4.01(a); provided2(b)(A) hereof during the First Period or, further(y) such request made during the Second Period, that if any Registrable Securities requested to be registered pursuant to and a Demand Request are excluded from the applicable Demand Registration has been previously effected by Drew pursuant to Section 4.01(e2(b)(B) belowhereof during the Second Period; or
(D) if Drew furnishes to the Shareholders a certificate signed by Drew's President stating that, in the Holders good faith judgment of Drew's Board of Directors, it would be seriously detrimental to Drew and its shareholders for a Registration to be effected at such time, in which event Drew shall have the right, with respect right to each such exclusion, to defer the Registration for a period of not more than one hundred twenty (120) days after receipt of the request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless of the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registrationShareholders under this Section 2(b); provided, however, that ifDrew shall not utilize this right more than once in any eighteen (18) month period; or
(E) in any particular jurisdiction in which Drew would be required to qualify to do business or to execute a general consent to service of process in effecting such Registration, qualification or compliance.
(iii) Subject to the foregoing, as soon as practicable after it has receipt of the request from the Shareholders, Drew shall file, and use its best efforts to cause to become effective, an offering of a registration statement on Form S-3 or Form S-1 (as the case may be in accordance with subsection (ii)(A) above) covering the Registrable Securities pursuant and other securities so requested to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand RegistrationRegistered.
(div) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Except for up to 350,000 shares of Common Stock held by Drew Shareholders, other than the Shareholders, who are contractually entitled to have such Common Stock included in such Registration, Drew shall not include in any Registration is a “firm commitment” underwritten offering, requested pursuant to this Section 2(b) any securities which are not Registrable Securities without the Requesting Holders prior written consent of the holders of a majority of the Registrable Securities to be registered included in a Demand such Registration. If such Registration shall select the investment banking firm or firms to manage the is an 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, offering and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders Drew in writing that in their opinion the inclusion of such securities will materially and adversely affect the price or success of the 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 number of Registrable Securities proposed and, if permitted hereunder, other securities requested to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal offering exceeds the number of shares Registrable Securities and other securities, if any, which the Company is so advised can be sold in an orderly manner in such offering without within a Material Adverse Effect and price range acceptable to the holders of a majority of the Registrable Securities initially requesting such shares Registration, Drew shall be allocated pro rata among include in such Registration, prior to the Requesting Holders on the basis inclusion of any securities which are not Registrable Securities, the number of Registrable Securities requested to be included which in the opinion of such registration underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the respective holders thereof on the basis of the amount of Registrable Securities owned by each such Requesting Holderholder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (Drew Industries Incorporated)
Demand Registration. (a) Any Investor may request, The Holders shall have the right after the IPO Closing Date to request in writing (which request shall specify the Registrable Securities intended to be disposed of by such Holders and the intended method of distribution thereof, including in a “Demand Request”)Rule 415 Offering, if CMC is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering) that the Company effect the registration under the Securities Act of CMC register all or part a portion of its or their such Holders' Registrable Securities (a “"Demand Registration”). Notwithstanding ") by filing with the foregoingCommission, no as soon as practicable thereafter, but not later than the 30th day (or the 90th day if the applicable registration form is other than Form S-3) after the receipt of such a request by CMC, a registration statement covering such Registrable Securities.
(b) CMC shall not be required to effect a Demand Request will Registration within 90 days after the effective date of a previous registration statement, other than pursuant to a Rule 415 Offering, effected with respect to Registrable Securities pursuant to this Section 4.1.
(c) Any request made pursuant to this Section 4.1 shall be effective hereunder unless addressed to the proposed attention of the corporate secretary of CMC, and shall specify (i) the number of Registrable Securities to be sold by registered (which shall be not less than the Holders requesting the Demand Registration lesser of (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(fx) hereof) represent, in the aggregate, more than 355% of the total number of Registrable Securities outstanding and (y) the remaining balance of the Registrable Securities then held by all the Holders); provided that CMC shall not be obligated to effect more than one (1) Demand Registration in any twelve (12) month period.
(bd) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file CMC may not include in a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below4.1 hereof shares of CMC Capital Stock for the account of CMC or any Subsidiary of CMC, the Holders shall have the rightbut, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities if 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 Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 Companyextent required by a contractual obligation, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnairesmay, 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 Securities 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 subject to compliance with securities laws as may be reasonably requested; providedSection 4.1(e), further, however, that the obligation include shares of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities to be sold CMC Capital Stock for the account of any other Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion who holds shares of such securities will materially and adversely affect the price or success of the 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 Securities proposed CMC Capital Stock entitled to be included therein. If, in connection with a registration statement pursuant to this Section 4.1, the Managing Underwriters shall inform CMC that in their opinion there is a maximum number of shares of CMC Capital Stock that may be included therein, CMC shall include in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 all Registrable Securities requested to be included in such registration by each the Holders together with up to such Requesting Holder.
(f) Upon receipt additional number of shares of CMC Capital Stock that any Demand Request, the Company shall promptly (but other Persons entitled to participate in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 registration desire to include in such Demand Registration such portion registration up to the maximum number of their Registrable Securities as they shares of CMC Capital Stock that the Managing Underwriters have informed CMC may request. All Holders requesting to have their Registrable Securities be included in a Demand Registration such registration without materially and adversely affecting the success or pricing of such offering; provided that the number of shares of CMC Capital Stock to be offered for the account of all such other Persons participating in accordance with the preceding sentence such registration shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f)reduced in a manner determined by CMC in its sole discretion.
(ge) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 No Holder or any other Person may participate in any Underwritten Offering under this Section 4.1 unless it completes and executes all customary questionnaires, powers of its Subsidiaries are engaged in confidential negotiations or attorney, custody agreements, underwriting agreements and other confidential business activities, disclosure customary documents required under the customary terms of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding underwriting arrangements. In connection with reasonable diligence to effect such offering. A deferral of the filing of a registration statement any Underwritten Offering pursuant to this Section 4.01(g) shall be lifted4.1, each participating Holder and the requested registration statement shall be filed forthwithCMC and, if, except in the case of a deferral pursuant Rule 415 Offering, each other Person shall be a party to clause (i) the underwriting agreement with the underwriters and may be required to make certain customary representations and warranties and provide certain customary indemnifications for the benefits 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceunderwriters.
Appears in 1 contract
Sources: Master Transaction Agreement (Classmates Media CORP)
Demand Registration. (a) Any Investor may requestIf the Company shall receive at any time prior to the Expiration Date, in writing (a “Demand Request”), written request from the Holder that the Company effect file a Registration Statement under the Securities Act covering the registration of Registrable Securities (as hereinafter defined), then the Company shall, within twenty (20) days of the receipt thereof, use reasonable best efforts to file the registration under the Securities Act of all or part of its or their Registrable Securities of the Holder subject to such written request and shall cause such Registration Statement to become effective within forty-five (45) days of such filing date or ninety (90) days of such filing date if the SEC commences a full review of such Registration Statement. The term “Demand Registration”)Registrable Securities” means (i) all shares of Common Stock issued to the Holder in connection with the Offering or any subsequent offerings pursuant to that certain Engagement Letter by and between the Company and the Holder dated February __, 2011, (ii) all shares of Common Stock issued to the Holder pursuant to that certain Consulting Agreement by and between the Company and the Holder dated February __, 2011, (iii) the Warrant Shares issuable upon exercise or otherwise pursuant to this Warrant and (iv) any shares of capital stock issued or issuable in exchange for or otherwise with respect to the foregoing, and the term “Registration Statement” means a registration statement of the Company under the Securities Act which the Company may or is obligated to file hereunder. The Company’s obligations under this Section 9(a) shall be limited to [one] Registration Statement that has been declared effective. Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act not be required to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 this Section 4.01(a9(a) unless such Person either (i) agrees prior to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above and [__________ __, 20__] or (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under during the terms of such underwriting arrangements; provided, however, that no such Person shall be required period starting with the date sixty (60) days prior 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion good faith estimate of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes date of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until and ending on a date not later than 90 ninety (90) days after the Required Filing Date (or, if longer, 90 days after following the effective date of the a Company-initiated registration statement contemplated by clause (iisubject to Section 9(b) below) if (i) at the time below for which the Company receives will provide for participation by 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 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 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 4.01(g) shall be lifted, and the requested registration statement shall be filed forthwith, ifHolder; provided that, 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), the Company shall promptly (but is actively employing in any event within ten days), upon determining good faith reasonable best efforts to seek cause such deferral, deliver Registration Statement 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Companybecome effective; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.or
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time prior to such time as the rights under this Section 2 terminate with respect to a Holder as provided in Section 2(e) hereof, upon written notice from such Holder in writing (a “Demand Request”), the manner set forth in Section 13(h) hereof requesting that the Company effect the registration under the Securities Act of any or all or part of its or their the Registrable Securities (a “Demand Registration”). Notwithstanding held by such Holder, which notice shall specify the foregoingintended method or methods of disposition of such Registrable Securities, no Demand Request will be effective hereunder unless the proposed Registrable Securities Company shall use its best efforts to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representeffect, in the aggregatemanner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including in an offering on a delayed or continuous basis under Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act, if (x) the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering and (y) the Company consents to such an offering (except that no consent of the Company will be required if the contemplated offering on a delayed or continuous basis under Rule 415 is the offering of Registrable Securities upon the exercise, exchange or conversion of Exchangeable Securities as contemplated by Section 6 hereon), PROVIDED that:
(i) if, within five (5) business days of receipt of a registration request pursuant to this Section 2(a), the Holder or Holders making such request are advised in writing that the Company has in good faith commenced the preparation of a registration statement for an underwritten public offering prior to receipt of the notice requesting registration pursuant to this Section 2(a) and the managing underwriter of the proposed offering has determined, and set forth in writing to said Holder or Holders, that in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect the offering that is contemplated by the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) (a "Transactional Deferral") until the earliest of (A) the abandonment of such offering by the Company, (B) 60 days after receipt by the Holder or Holders requesting registration of the managing underwriter's written opinion referred to above in this clause (i), unless the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, and (C) if the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, the day on which the restrictions on the Holders contained in Section 10 hereof lapse, PROVIDED HOWEVER, that the Company shall not be permitted to delay a requested registration in reliance on this clause (i) more than 35% once in any 12-month period;
(ii) if, while a registration request is pending pursuant to this Section 2(a), the Company is advised in writing by its legal counsel that the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and the disclosure of which the Company determines reasonably and in good faith would have a material adverse effect on the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such material information is otherwise disclosed to the public or ceases to be material and (B) 90 days after the Company makes such determination;
(iii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) prior to the first anniversary of the total closing of the Public Offering, (B) within a period of 365 calendar days after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a), or (C) if such registration request is for a number of Registrable Securities held having a Fair Market Value on the business day immediately preceding the date of such registration request of less than $50,000,000; and
(iv) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) in the case of a registration request by all HoldersBCC or any Permitted Transferee that has acquired, in the transaction in which it became a Permitted Transferee, at least a majority of the then issued and outstanding Voting Stock, on more than three occasions after such time as BCC or such Permitted Transferee, as the case may be, owns less than a majority of the voting power of the outstanding capital stock of the Company (it being acknowledged that so long as BCC or such Permitted Transferee owns a majority of the voting power of the outstanding capital stock of the Company, there shall be no limit to the number of occasions on which BCC or such Permitted Transferee may exercise such rights), or (B) in the case of a Holder other than BCC or a Permitted Transferee described in clause (A) above, on more than the number of occasions permitted such Holder in accordance with Section 11 hereof.
(b) Each Demand Request Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to this Section 2 shall specify the number not be deemed to have been effected (and, therefore, not requested for purposes of Registrable Securities proposed to be sold. Subject to Section 4.01(g2(a)), (A) unless the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, filed in connection with such withdrawn registration); provided, however, that if, after it therewith has become effective, an offering of Registrable Securities pursuant (B) if after such registration statement has become effective, it becomes subject to a registration is interfered with by any stop order, or there is issued an injunction or other order or requirement decree of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by such Holder, which injunction, order, or decree prohibits or otherwise materially and adversely affects the offer and sale of the Registrable Securities so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement, or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not satisfied by reason of some act, misrepresentation, or omission by the Company and are not waived by the purchasers or underwriters; and
(ii) nothing herein shall modify a Holder's obligation to have been effected and will not count as a Demand Registrationpay Registration Expenses, in accordance with Section 4 hereof, that are incurred in connection with any withdrawn registration requested by such Holder.
(dc) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Requesting Holders of a majority Fair Market Value of the Registrable Securities to be registered in a Demand Registration connection with such offering shall select have the investment banking firm or firms right to manage designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering, provided that and the Company shall have the right to designate one underwriter reasonably satisfactory to such selection Holders as a co-manager of such underwritten offering.
(d) The Company shall be subject have the right to cause the consent registration of additional securities for sale for the account of any person (including the Company, which consent shall not be unreasonably withheld. No Person may participate ) in any registration of Registrable Securities requested by any Holder pursuant to Section 4.01(a2(a) unless only to the extent the managing underwriter or other independent marketing agent for such Person offering (iif any) agrees determines that, in its opinion, the additional securities proposed to sell such Person’s Registrable Securities on be sold will not materially and adversely affect the basis provided in any underwriting arrangements described above offering and (ii) completes and executes all questionnaires, powers sale 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 Securities to be transferred free and clear registered in accordance with the intended method or methods of all liens, claims and encumbrances, (B) disposition then contemplated by such Person’s power and authority Holder. The rights of a Holder to effect cause the registration of additional Registrable Securities held by such transfer and (C) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation Holder in any registration of such Person to indemnify Registrable Securities requested by another Holder pursuant to any such underwriting arrangements Section 2(a) shall be several, not joint and several, among such Persons selling Registrable Securities, and governed by the liability agreement of each such Person will be the Holders with respect thereto as provided in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registrationSection 11(a).
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration not be obligated to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of file a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental relating to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement request by a Holder pursuant to this Section 4.01(g) shall be lifted2 from and after such time as such Holder first owns Registrable Securities representing (assuming for this purpose the conversion, and the requested registration statement shall be filed forthwithexchange, if, in the case or exercise of a deferral pursuant to clause (i) all Registrable Securities then owned by such Holder that are convertible into or exercisable or exchangeable for Voting Stock of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (iiCompany) less than 10% of the preceding sentence, the proposed registration for then issued and outstanding Voting Stock of the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor At any time following the one year anniversary of the date of this Agreement, the Holder may request, in writing (make a “Demand Request”), written request to the Company requesting that the Company effect the registration register under the Securities Act of all or part any portion of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold Shares held by the Holders requesting Holder (but in no event shall the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(fwritten demand be for less than 200,000 Shares) hereof) represent, for sale in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and manner specified in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingnotice; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 required to effect a registration pursuant to this Section 4.01(a) unless such Person (i) agrees 3 if counsel for the Company shall deliver an opinion, in form and substance reasonably satisfactory to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnairesHolder, powers of attorney, indemnities, underwriting agreements and other documents reasonably required to the effect that the Shares are salable pursuant to Rule 144 under the terms of such underwriting arrangementsAct; 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 Securities 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 no request may be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of made under this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 3 within 180 days after the effective date of the a registration statement contemplated filed by clause (ii) below) if (i) at the time the Company receives covering a public offering in which the Demand RequestHolder shall have been entitled to join pursuant to Section 4 hereof.
(b) The Company shall use its reasonable commercial efforts to register the Shares under the Act by taking all actions necessary, including, without limitation, those actions set forth in Section 5 hereof, to permit the public sale of the Shares in accordance with the method of disposition specified in the notice described in paragraph (a) above, the Company or any number of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required Shares specified in such registration statement (but would not notice. If such method of disposition shall be required if an underwritten public offering, the Holder may designate the managing underwriter of such registration statement were not filed)offering, and the Board determines in good faith that such disclosure would be materially detrimental subject to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering approval of the Company’s Securities for , which approval shall not be unreasonably withheld or delayed. The Company shall be obligated to register 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 Shares pursuant to this Section 4.01(g) 3 on one occasion only, provided, however, that such obligation shall be lifted, and the requested deemed satisfied only when a registration statement covering all Shares specified in the notice received as aforesaid, for sale in accordance with the method of disposition specified by the Holder shall have become effective.
(c) The Company shall be filed forthwithentitled to include in any registration statement referred to in this Section 3, iffor sale in accordance with the method of disposition specified by the Holder, shares of Common Stock to be sold by other selling stockholders or by the Company for its own account, except as and to the extent that, in the case of a deferral pursuant to clause (i) opinion of the preceding sentencemanaging underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) marketing of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order Shares to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncesold.
Appears in 1 contract
Sources: Registration Rights Agreement (Physician Computer Network Inc /Nj)
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that If at any time after the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) date hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall receive a written request from the Stockholder that the Company file a registration statement under the Act covering the registration of at least twenty five percent (25%) of the Registrable Securities Act to then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $5,000,000), then the Company shall:
(i) effect the Demand Registration as promptly soon as possible practicable, and in any event within 90 days after receiving receipt of such request, the registration under the Act of all Registrable Securities which the Stockholder request to be registered.
(b) If the Stockholder intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as a Demand Request (part of its request made pursuant to subsection 1.2(a). The underwriter or underwriters will be selected by the “Required Filing Date”) Stockholder and shall use all commercially reasonable efforts be reasonably acceptable to cause the same to be declared effective by the SEC Company. The Stockholder (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that together with the Company need effect only two (2as provided in subsection 1.4(e)) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from shall enter into an underwriting agreement in customary form with the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each underwriter or underwriters selected for such exclusion, to request one additional Demand Registrationunderwriting.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the 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 Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 obligated to effect, or to take any action to effect, any registration pursuant to this Section 4.01(a) unless such Person 1.2:
(i) agrees if more than one registration has been effected pursuant to sell such Person’s Registrable Securities on the basis provided this Section 1.2 in any underwriting arrangements described above preceding twelve (12) month period and such registration has been declared or ordered effective, or more than two such registrations have been declared or ordered effective overall;
(ii) completes and executes all questionnaires, powers During the period starting with the date thirty (30) days prior to the Company's good faith estimate of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms date 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 Securities 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 Securitiesfiling of, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 ending on the basis of the number of Registrable Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date 2 ninety (or, if longer, 90 90) days after the effective date of the of, a registration statement contemplated by clause (ii) below) if (i) at the time subject to Section 1.3 hereof; provided that the Company receives the Demand Request, the Company or any of its Subsidiaries are engaged is actively employing in confidential negotiations or other confidential business activities, disclosure of which would be required in good faith all reasonable efforts to cause such registration statement to become effective;
(but would not iii) If the Stockholder proposes to dispose of shares of Registrable Securities that may be required immediately registered on Form S-3 pursuant to a request made pursuant to Section 1.10 below; or
(iv) if such registration statement were not filed), and the Company shall furnish to the Stockholder a certificate signed by the Chairman of the Board determines stating that in the good faith that such disclosure judgment of the Board of Directors of the Company, it would be materially seriously detrimental to the Company and its stockholders or for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (ii90) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering days after receipt 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 request of the filing of Stockholder; provided that such right to delay a registration statement request, whether pursuant to this Section 4.01(g) 1.2 or Section 1.10, 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), exercised by the Company shall promptly (but not more than once 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 4.01(gtwelve (12) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncemonth period.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time, in writing (upon written notice from a “Demand Request”), Holder requesting that the Company effect the registration under the Securities Act of any or all or part of its or their the Registrable Securities held by such Holder, which notice (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the "Demand Registration (Notice") shall specify the “Requesting Holders,” which term intended method or methods of disposition of such Registrable Securities, the Company shall include parties deemed “Requesting Holders” pursuant use its Best Efforts to Section 4.01(f) hereof) representeffect, in the aggregatemanner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, PROVIDED that:
(i) if prior to receipt of a Demand Registration Notice, the Company had commenced a financing plan and if such financing plan is an underwritten offering, and, in the good-faith business judgment of the Company's underwriter, a registration at the time and on the terms requested would materially and adversely affect or interfere with such financing plan of the Company or its subsidiaries (a "Transaction Blackout"), the 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, (B) 90 days after the termination of such offering, (C) the termination of any "hold back" period obtained by the underwriter(s) of such offering from any person in connection therewith or (D) 180 days after receipt by the Holder requesting registration of the written notice from the Company referred to above in this subsection (i);
(ii) if, while a registration request is pending pursuant to this Section 2(a), the Company, with the prior approval of a majority of the Company's Board of Directors, may delay commencing to effect such registration until ninety (90) days after receipt of notice of such request if the disinterested members of the Board of Directors determine, in good faith, that the filing of a registration statement at the time of such request would be materially detrimental to the Company, provided that the Company shall not be permitted to delay a requested registration in reliance on this clause (ii) more than 35% once in any 12-month period; and
(iii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2(a): (A) within a period of six months after the effective date of any other registration statement of the total Company demanded pursuant to this Section 2(a); or (B) if such registration request is for a number of Registrable Securities held that represent in the aggregate (on an as converted basis) less than the lesser of: (x) one million (1,000,000) shares of Common Stock and (y) the remaining number of shares of Common Stock owned by all Holdersthe Investor and its Affiliates.
(b) Each Demand Request shall specify Notwithstanding any other provision of this Agreement to the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)contrary, the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving requested by a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations Holder pursuant to Demand Requests made by Holders this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Registrable Securities pursuant Section 2(a)): (i) if it is withdrawn based upon material adverse information relating to Section 4.01(a)the Company; provided, further, that or (ii) if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until after it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by such Holder and, such registration will be deemed not to have been effected and will not count as a Demand Registrationresult thereof, less than 90% 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, the Holder initiating the demand pursuant to Section 2(a) shall have the right to designate an underwriter as the sole lead managing underwriters of such underwritten offering, subject to the Company's consent which shall not be unreasonably withheld.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, other than the Requesting Holders Holder initiating the demand pursuant to Section 2(a) shall have the right to include their shares of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities on 2(a); PROVIDED that the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and Investor may exclude participation by 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 Holders in connection with any such registration other than representations and warranties as to (A) such Person’s ownership of his or its Registrable Securities 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 registrations pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability two demands (no two of each such Person will which can be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”consecutive years). FurthermoreIn connection with those registrations in which multiple Holders participate, in the event such registration involves an underwritten offering and the Holder initiating demand pursuant to Section 2(a) is advised in writing (with a copy to the Company) by the lead managing underwriter or underwriters shall advise the Company or the Requesting Holders that even after exclusion of all securities of other Persons designated by such Holder pursuant to Section 2(c) that, in such firm's good-faith opinion, marketing factors require a limitation on the immediately preceding sentencenumber of shares to be underwritten, the amount number of Registrable Securities proposed shares to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 underwriting and such shares registration shall be allocated pro rata PRO RATA among the Requesting Holders on the basis of the number shares of Registrable Securities held by each such Holder.
(e) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by a Holder pursuant to be included Section 2(a); provided that the Company shall not have the right to cause the registration of such additional securities if such Holder is advised in writing (with a copy to the Company) by the lead managing underwriter designated by the Holder pursuant to Section 2(c) 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 then contemplated by each such Requesting Holder.
(f) Upon In the event that any Demand Registration Notice includes a request for registration of the Warrant (or any portion thereof), the Company may elect, by written notice (the "Election Notice") to the Investor given within five (5) business days of the Company's receipt of any such Demand RequestRegistration Notice, to purchase the Warrant (or such portion thereof) in lieu of proceeding with the registration of the Warrant pursuant to this Section 2. On the third (3rd) business day following the Company's delivery to such Holder of the Election Notice, the Company shall promptly pay to the Holder by wire transfer of immediately available funds an amount equal to (but i) the average of the Closing Prices (as defined in any event within 10 daysthe Warrant) give written notice of such proposed the Common Stock for the twenty (20) consecutive Trading Days (as defined in the Certificate of Designation of the Series A Preferred Stock) preceding the date of delivery of the Demand Registration to all other InvestorsNotice, who shall have MULTIPLIED BY (ii) the right, exercisable by written notice to the Company within 20 days total number of their receipt shares of Common Stock that would be issuable upon conversion of the Company’s notice, to elect to include in such Demand Registration shares of Series A Preferred Stock represented by the Warrant (or such portion thereof) LESS the number of their Registrable Securities shares of Common Stock with an aggregate Trading Price (as they may request. All Holders requesting to have their Registrable Securities included defined in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes Warrant) as of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental Registration Notice equal to the Company and its stockholders or Warrant Price (iias defined in the Warrant) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps Warrant (including, but not limited to, selecting a managing underwriter for or 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(gportion thereof), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor may request, If at any time during the Eligible Period the Stockholder requests in writing (a “Demand Request”), the "Stockholder Demand") that the Company file a registration statement on Form S-3 (or any successor form to Form S-3) for a public offering of shares of the Registrable Shares the Company shall, subject to Section 4.1, file such Registration Statement with the SEC within forty-five (45) days after its receipt of such request. The Company shall use commercially reasonable efforts to cause such Registration Statement to be declared effective as soon thereafter as practicable and keep such registration statement effective until the Stockholder notifies the Company in writing that the Company is no longer required to keep such Registration Statement effective. In no event, however, shall the Company be required to (i) effect more than two (2) registrations pursuant to this section or (ii) keep one or more registration statements filed pursuant to this section effective for more than an aggregate of one hundred twenty (120) days. In the event the registration under the Securities Act of all or is proposed to be part of its or their Registrable Securities a firm commitment underwritten public offering, the substantive provisions of Section 2.3 shall be applicable to each such registration initiated under this Section 2.1 and the piggyback registration rights of Holders and GM Holders (a “Demand Registration”). Notwithstanding to the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representextent provided for, in the aggregate, more than 35% of Existing Registration Rights Agreement and the total number of Registrable Securities held by all HoldersGM Registration Rights Agreement) shall be applicable to a registration effected pursuant to this Section 2.1.
(b) Each Demand Request shall specify Notwithstanding the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)foregoing, the Company shall file a registration statement under the Securities Act not be obligated to effect the Demand Registration as promptly as possible and in take any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations action pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.subparagraph (a):
(ci) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 if the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(awithin ten (10) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success days of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt of the Company’s noticeStockholder Demand, to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 gives notice 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 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 had determined BONA FIDE intention 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 with the SEC within forty-five (45) days of receipt of such demand (other than a registration relating primarily to this Section 4.01(g) shall the sale of securities to participants in a Company stock plan of employee benefit plan, a transaction covered by Rule 145 under the 1933 Act or the resale of securities issued in such a transaction, a registration in which the only stock being registered is Common Stock issuable upon conversion or exchange of debt securities which are also being registered, any registration on any form which does not include substantially the same information as would be lifted, and the requested registration statement shall required to be filed forthwith, if, included 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this covering the sale of the Registrable Shares, or a registration initiated under Section 4.01(g)2.1 or 2.2 of the GM Registration Rights Agreement) PROVIDED, HOWEVER, that if such registration statement is not filed by the Company within 45 days of receipt of such Stockholder Demand and declared effective by the Commission with 120 days after the Company's receipt of such Stockholder Demand, the Company shall promptly (but in any event within ten days), upon determining be obligated to seek cause such deferral, deliver to each Requesting Holder a certificate signed by an executive officer Registrable Shares of the Company stating Stockholder to be registered in accordance with the provisions of this Section 2.1 provided that the Company is deferring actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(ii) during the period starting with the Company's date of filing pursuant of, and ending on the date ninety (90) days immediately following, the effective date of any registration statement pertaining to this Section 4.01(g) and a general statement securities of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificateCompany, the holders of a majority of the Registrable Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request either filed as a result of the exercise by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes Stockholder of this Agreement. The Company may defer the filing of a particular registration statement its rights pursuant to this Section 4.01(g) only once2.1 hereof or was subject to Section 2.2 hereof.
Appears in 1 contract
Demand Registration. (a) Any Investor The DLJ Entities may requestat any time make a written request (such requesting DLJ Entity, in writing (a “Demand Request”), "SELLING STOCKHOLDER") that the Company Issuer effect the registration under the Securities Act of all or part a portion of its or their such Selling Stockholder's Registrable Securities Stock, and specifying the intended method of disposition thereof. The Issuer will promptly give written notice of such requested registration (a “Demand Registration”). Notwithstanding "DEMAND REGISTRATION") at least 30 days prior to the foregoing, no Demand Request will be effective hereunder unless anticipated filing date of the proposed Registrable Securities registration statement relating to be sold by the Holders requesting the such Demand Registration (to the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant Other Stockholders and thereupon will use its best efforts to Section 4.01(f) hereof) representeffect, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)as expeditiously as possible, the Company shall file a registration statement under the Securities Act of:
(i) the Registrable Stock then held by the Selling Stockholders which the Issuer has been so requested to register by the Selling Stockholders; and
(ii) subject to Section 4.2, all other Registrable Stock which any Other Stockholder entitled to request the Issuer to effect the Demand an Incidental Registration (as promptly as possible and such term is defined in any event within 90 days after receiving a Demand Request (the “Required Filing Date”Section 4.2) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided4.2 (all such Stockholders, furthertogether with the Selling Stockholders, that if any 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 requested Stock so to be registered registered; provided that, subject to Section 4.1(c) hereof, the Issuer shall not be obligated to effect more than three Demand Registrations for the DLJ Entities collectively pursuant to a this Section 4.1 other than any such Demand Request are excluded from Registrations effected on Form S-3; and provided further that the applicable Demand Registration pursuant Issuer shall not be obligated to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as effect a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed Stock requested to be included in such Demand Registration by Requesting Holders is sufficiently large constitutes at least 25% of the Common Stock then outstanding or to cause a Material Adverse Effectbe issued upon conversion of the Preferred Stock. In no event will the Issuer be required to effect more than two Demand Registrations on Form S-3 within any 12 month period. Promptly after the expiration of the 15-day period referred to in Section 4.1(a)(ii) hereof, the Registrable Securities Issuer will notify all of the Requesting Holders to be included in such the Demand Registration shall equal of the other Holders and 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 Securities Stock requested to be included in such therein. The Selling Stockholders requesting a registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of under this Section 4.01(f).
(g4.1(a) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (ormay, if longer, 90 days after at any time prior to the effective date of the registration statement contemplated by clause (ii) below) if (i) at the time the Company receives the Demand Requestrelating to such registration, the Company or revoke such request, without liability to any of its Subsidiaries are engaged in confidential negotiations or the other confidential business activitiesHolders, disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect by providing 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving written notice to the Company; if withdrawnIssuer revoking such request, the Demand Request in which case such request, so revoked, shall be deemed considered a Demand Registration unless such revocation arose out of the fault of the Issuer, in which case such request shall not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.be
Appears in 1 contract
Demand Registration. (ai) Any Investor At any time commencing September 1, 1997 and expiring five (5) years from the date of this Subscription Agreement, the undersigned shall have the right (which right is in addition to 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 comply with the provisions of the Securities Act, so as to permit a public offering and sale of the Common Shares.
(ii) If the undersigned exercises its registration request, pursuant to Section VI(b)(i) above, between September 1st and November 1st (the "Window Period") of any given year, the registration costs and filing fees incurred in writing connection with such registration (a “Demand Request”)the "Costs") shall be divided evenly between the undersigned and the Company; provided, however, that the Company effect Costs payable by the undersigned shall be capped at $25,000. If the undersigned exercises such registration under request on a date outside of the Securities Act of all 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 include any amounts payable to the undersigned's counsel, any transfer taxes or part of its underwriting discounts, commissions or their Registrable Securities (a “Demand Registration”)fees applicable to the Common Shares, which shall be payable solely by the undersigned. Notwithstanding the foregoing, no Demand Request will be if the registration statement to which the Costs are associated is, due solely to actions of the Company, not declared effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting Commission within six months from the Demand Registration (date it is first filed with the “Requesting Holders,” which term Commission, then the Company shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by pay all HoldersCosts associated with such registration statement.
(biii) Each Demand Request In connection with any registration under Section VI(b) hereof, the Company covenants and agrees as follows:
a. The Company shall specify use its best efforts to file a registration statement within sixty (60) days of receipt of any demand therefor, except that if such demand is made during the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)Window Period, the Company shall use its best efforts to file a registration statement under within 60 days of the Securities Act end of the Window Period, shall use its best efforts to effect have any registration statements declared effective at the Demand Registration as promptly as earliest possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) time, and shall use all commercially reasonable efforts to cause furnish the same to undersigned such number of prospectuses as shall reasonably be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingrequested; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders may, at any time, delay the filing or delay or suspend the effectiveness of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless registration or, without suspending such effectiveness, instruct the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed undersigned not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offeringsell any securities included in such demand registration, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees if the Company shall have determined upon the written advice of counsel (confirmation of which notice shall be provided to sell the undersigned in writing by such Person’s Registrable Securities 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 basis provided in any underwriting arrangements described above and Company or on such actions, or (ii) completes and executes all questionnairesif required by law, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under to update the terms of such underwriting arrangements; provided, however, that no such Person shall be required prospectus relating 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering include updated financial statements (a “Material Adverse Effect”). Furthermore, in "Suspension Period") by providing 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give undersigned with written notice of such proposed Demand Registration 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 all other Investors, who shall have the right, exercisable by written notice 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 within 20 days of their receipt of such appropriate information concerning the Company’s notice, to elect to include in such Demand Registration such portion of their Registrable Securities undersigned and the Common Shares as they the Company may reasonably request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) b. The Company may defer agrees that it will use its best efforts to maintain the filing (but not the preparation) effectiveness of a any registration statement required by filed pursuant to Section 4.01(aVI(b) until hereof for a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after period of 1 year from the effective date of the such registration statement contemplated by clause (ii) below) if (i) at the time the statement.
c. 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 will take all necessary action which would may be required in such qualifying or registering the Common Shares included in a registration statement (but would for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the undersigned, provided that the Company shall not be required if obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such registration statement were not filed), and the Board determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or jurisdiction.
(iiiv) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of Neither the filing of a registration statement by the Company pursuant to this Section 4.01(gVI(b) nor the making of any request for prospectuses by the undersigned shall be liftedimpose upon the undersigned any obligation to sell the Common Shares.
(v) The undersigned, and upon receipt of notice from the requested registration statement shall be filed forthwith, if, in the case of Company that an event has occurred which requires a deferral pursuant post-effective amendment 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant or a supplement to this Section 4.01(g)a prospectus included therein, shall promptly discontinue the sale of the Common Shares until the undersigned receives a copy of a supplemented or amended prospectus from the Company, which the Company shall promptly (but in any event within ten days), upon determining to seek provide as soon as practicable after 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncenotice.
Appears in 1 contract
Demand Registration. (a) Any Investor may request, At any time following the date of this Agreement and upon written notice from a Holder or Holders of at least twenty percent (20%) of the Registrable Securities (without giving effect to any limitation on exercise or conversion) in writing (a “Demand Request”), the manner set forth in Section 11(h) hereof requesting that the Company effect the registration under the Securities Act of any or all or part of its or their the Registrable Securities held by such Holder as described in Section 2(b) (a “Demand Registration”which notice shall specify the intended method or methods of disposition of such Registrable Securities). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities Company shall use its reasonable best efforts to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representeffect, in the aggregatemanner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request; 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; or (B) Company then is unable to comply with SEC requirements applicable to the requested registration (notwithstanding its reasonable best efforts to so comply), Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such contemplated transaction is completed or abandoned or such material information is otherwise disclosed to the public or ceases to be material or Company reasonably is able to so comply with applicable SEC requirements, as the case 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 term of this Agreement.
(iii) Company shall not be obligated to file more than 35% of two (2) registration statements under the total Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any event if such a registration request is for a number of Registrable Securities held by all Holderswhich have an aggregate market value less than $1 million. If such a request shall be for an underwritten offering, such a request must be for a number of Registrable Securities which have an aggregate market value of at least $5 million.
(b) Each Demand Request Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall specify not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the requesting Holder based upon material adverse information relating to Company that is (x) different from the information known to the Holder or Holders requesting registration at the time of their request for registration, or (y) promptly disclosed by Company to the Holder at the time of their request for registration; (B) if, when effective, it includes fewer than ninety (90%) percent of the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders shares of Registrable Securities pursuant to Section 4.01(a)which were the subject matter of the request; provided, further, that (C) if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until after it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by such Holder and, such registration will be deemed not to have been effected and will not count as a Demand Registrationresult 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) Requesting Holders can request 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 “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, Company registration statement shall have the Requesting Holders right to include their shares of a majority of the Registrable Securities to be registered in a Demand Registration shall select or other registrable securities, as the investment banking firm or firms to manage the underwritten offeringcase may be, 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 4.01(a2(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") unless such Person (i) agrees 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 sell such Person’s Registrable Securities 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 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person estimated proceeds from the sale of his or its Registrable Securities pursuant to the securities covered by such registration.
(e) No Company shall have the right to cause the registration of additional securities to be sold for sale for the account of Company in any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 registration of Registrable Securities requested by a Holder pursuant to be included 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 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 by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration securities in addition to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities those securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(gSections 2(a)-(d) shall be lifted, hereof would materially adversely affect the offering 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 sale of the Registrable Securities held then contemplated by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Kronos Advanced Technologies Inc)
Demand Registration. (a) Any Investor may requestIf at any time following 180 days after the completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or more underwriters (unless waived by such underwriter(s)) and the Private Placement Lock-Up Agreement (unless waived in writing accordance with the terms thereof), the Company shall receive a request (each such request shall be referred to herein as a “Demand RequestRegistration”) from a Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty five percent (35%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) for the first Public Offering of the Company to be effected pursuant to this Section 2.01 after the completion of the Initial Public Offering (the “Follow-On Offering”), of at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities then outstanding (or any lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $5,000,000), or (ii) after the completion of the Follow-On Offering, of all or part any portion of its or their the Requesting Shareholder’s Registrable Securities (a “Demand Registration”). Notwithstanding and, in each case, specifying the foregoingintended method of disposition thereof, no Demand Request will be effective hereunder unless then the proposed Registrable Securities to be sold Company shall as promptly as practicable following the date of receipt by the Holders requesting Company of such request give notice of such Demand Registration within ten (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration (is given by the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant Shareholder, provided that if the Demand Registration is given prior to Section 4.01(f) hereof) represent180 days after the Initial Public Offering, in not before 180 days after the aggregateInitial Public Offering, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act Act, and (ii) use its commercially reasonable efforts to effect the Demand Registration effect, as promptly soon as possible practicable and in any event within 90 one hundred twenty (120) days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause date the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, given by the Requesting Holders of a majority of the Registrable Securities to be registered in a Demand Registration shall select the investment banking firm or firms to manage the underwritten offeringShareholder, provided that such selection if the Demand Registration is given prior to 180 days after the Initial Public Offering, the aforesaid one hundred twenty (120) days shall be subject to counted commencing 180 days after the consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal Initial Public Offering less the number of shares days up to 45 by 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 giving of the number of Registrable Securities requested to be included in Demand Registration precedes such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request180th day, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date effectiveness 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 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 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 4.01(g) shall be lifted, and the requested registration statement shall be filed forthwith, ifstatement, in the each 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.covering:”
Appears in 1 contract
Demand Registration. (ai) Any Investor may requestAt any time after the expiration of the Lock-Up Period, in writing any Holder shall have the option and right, exercisable by delivering a written notice to the Company (a “Demand RequestNotice”), that to require the Company effect to, pursuant to the registration under terms of and subject to the Securities Act limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of all or part the number and type of its or their Registrable Securities on the 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”). Notwithstanding ; provided that the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration Company shall not (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(fA) hereof) represent, in the aggregatecase of the WP Member, be obligated to effect more than 35% two Demand Registrations on Form S-1 within any 12-month period and (B) in the case of all other Holders (other than the total number of Registrable WP Member), be obligated to effect more than two Demand Registrations in the aggregate (whether on Form S-1 or any successor form or other appropriate form under the Securities held by all Holders.
(bAct, including Form S-3) Each within any 12-month period. The Demand Request shall specify Notice must include such information regarding the Holder, the number of Registrable Securities proposed that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof as shall be required to effect the registration of the sale of the Holder’s Registrable Securities. Notwithstanding anything to the contrary herein, in no event shall the Company be required to effectuate a Demand Registration unless the Registrable Securities of the Holders and their respective Affiliates to be soldincluded therein have an aggregate value, based on the VWAP as of the date of the Demand Notice, of at least $30 million (the “Minimum Amount”).
(ii) Within 30 days after the receipt of the Demand Notice (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, within 60 days thereof), the Company shall, subject to the limitations of this Section 2(a), file a Registration Statement in accordance with the terms and conditions of the Demand Notice. The Company shall use all reasonable best efforts to cause such Registration Statement to become and remain effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”).
(iii) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) a Demand Registration within 60 days after the closing of any Underwritten Offering or (B) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have 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.
(iv) A Holder may withdraw all or any portion of its Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder to the effect that the Holder is withdrawing an amount of its Registrable Shares such that the remaining amount of Registrable Shares to be included in the Demand Registration is below the Minimum Amount, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement and such efforts shall count as an effected Demand Registration for purposes of Section 4.01(g2(a)(i), unless such Holder (i) shall have paid or reimbursed the Company for such Holder’s pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the Demand Registration which included such withdrawn Registrable Securities (based on the number of securities such Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (ii) has not previously withdrawn any prior Demand Registration pursuant to this Section 2(a)(iv).
(v) The Company may include in any such Demand Registration other Company Securities for sale for its own account or for the account of any other Person, subject to Sections 2(c), (d) and (e).
(vi) Subject to the limitations contained in this Agreement, the Company shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by the Company and (B) 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 if the Company becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Securities Act (if available to the Company). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable Securities included on such Registration Statement, the Company will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(vii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Company shall (A) promptly prepare and file a registration statement 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 Act to effect the Demand Registration securities laws of such jurisdictions as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 arrangementsrequest; provided, however, that no such Person qualification shall be required in any jurisdiction where, as a result thereof, the Company would become subject to make any representations general service of process or warranties to taxation or qualification to do business in connection with any such jurisdiction solely as a result of registration other than representations and warranties as to (A2) such Person’s ownership of his forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or its to list the Registrable Securities subject to be transferred free such Demand Registration on the Trading Market and clear of all liens, claims and encumbrances, (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 Person’s power Registrable Securities in accordance with the intended timing and authority to effect method or methods of distribution thereof.
(viii) In the event a Holder transfers Registrable Securities included on a Registration Statement and such transfer and (C) Registrable Securities remain Registrable Securities following such matters pertaining to compliance with securities laws transfer, at the request of such Holder, the Company shall amend or supplement such Registration Statement as may be reasonably requested; provided, further, however, that the obligation of necessary in order to enable such Person transferee to indemnify pursuant to any offer and sell such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities Registration Statement; provided that in no event shall the Company be required to be sold for the account of any Person (including the Company) other than file a Requesting Holder shall be included in a Demand Registration post-effective amendment to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of Registration Statement unless (A) such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Statement includes only Registrable Securities held by the Requesting Holders and Holder, Affiliates of the Holder or transferees of the Holder or (B) the Company has received written consent therefor from a Person 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 whom Registrable Securities have been made for all purposes registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of this Agreement. The Company may defer the filing Holder or transferees of a particular registration statement pursuant to this Section 4.01(g) only oncethe Holder.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Calumet Specialty Products Partners, L.P.)
Demand Registration. (a) Any Investor may request, At any time following the date of this Agreement and upon written notice from a Holder or Holders of at least 51% of the Registrable Securities in writing (a “Demand Request”), the manner set forth in Section 10(h) hereof requesting that the Company WAXS effect the registration under the Securities Act of any or all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities 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), WAXS shall use its reasonable best efforts to effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request; provided that:
3 (i) if, prior to receipt of a registration request pursuant to this Section 2(a), WAXS had commenced a financing plan and held or identified a date to hold a formal "all Holdershands" meeting with outside advisors, including an underwriter if such financing plan is an underwritten offering, and, in the good faith business judgment of WAXS'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 WAXS or its subsidiaries (a "Transaction Blackout"), WAXS 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 WAXS 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.
(bii) Each Demand Request if, while a registration request is pending pursuant to this Section 2(a), WAXS 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 WAXS or would require the disclosure of material information that WAXS had a bona fide business purpose for preserving as confidential; or (B) WAXS then is unable to comply with SEC requirements applicable to the requested registration (notwithstanding its reasonable best efforts to so comply), WAXS shall specify not be required to effect a registration pursuant to this Section 2(a) until the number earlier of Registrable Securities proposed (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 sold. Subject material or WAXS reasonably is able to so comply with applicable SEC requirements, as the case may be, and (B) thirty (30) days after WAXS makes such good-faith determination; provided that WAXS shall only be permitted to delay a requested registration under this Section 4.01(g2(a), whether in reliance on this subsection (ii) or on subsection (i) above, twice during the Company term of this Agreement.
(iii) WAXS shall not be obligated to file a more than one (1) registration statement under the Securities Act relating to effect the Demand Registration as promptly as possible a registration request pursuant to this Section 2(a) and shall not be obligated in any event within 90 days after receiving if such registration request is for a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders number of Registrable Securities pursuant to Section 4.01(a); providedwhich have an aggregate market value less than $1 million. If such request shall be for an underwritten offering, further, that if any such request must be for a number of Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall which have the right, with respect to each such exclusion, to request one additional Demand Registrationan aggregate market value of at least $5 million.
(cb) 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 count as a Demand Registration until be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a): (A) if it is withdrawn based upon material adverse information relating to WAXS that is different from the information (x) known to the Holder requesting registration at the time of their request for registration, or (y) promptly disclosed by WAXS to the Holder at 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 which were the subject matter of the request; (C) if after it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 court for any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities to be sold for the account of any Person (including the Company) reason other than a Requesting misrepresentation or an omission by such Holder shall be included in and, as a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success result thereof, less than ninety (90%) percent of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration registered can be completely distributed in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes plan of this Section 4.01(f)distribution set forth in the related registration statement.
(gc) The Company may defer In the filing (but not the preparation) of a event that any registration statement required by Section 4.01(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 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 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 4.01(g) 2 shall be lifted, and the requested registration statement shall be filed forthwith, ifinvolve, in whole or in part, an underwritten offering, WAXS shall have the case right to designate the underwriter or underwriters, including the lead managing underwriter 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceunderwritten offering.
Appears in 1 contract
Sources: Registration Rights Agreement (World Access Inc /New/)
Demand Registration. (a) Any Investor may requestIf, in writing (a “Demand Request”), that the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, at any time more than 35% one (1) year after the date of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)this Agreement, the Company shall receives written notice from Investor requesting that Company file a registration statement under the Securities Act covering the registration of at least fifty percent (50%) of the Shares then owned by Investor, Company will use its best efforts to effect the Demand Registration registration under the Act of all Shares which investor requests to be registered, to the extent necessary to permit the legally permissible sale or other disposition by Investor to be so registered.
(b) If Investor intends to distribute the Shares covered by its request by means of an underwriting, it will so advise Company as promptly as possible a part of the request made pursuant to this Section 2. The underwriter selected by Investor shall be reasonably acceptable to Company. In such event, the right of Investor to include its Shares in the registration shall be conditioned upon Investor’s participation in such underwriting and the inclusion of the Shares in any event within 90 the underwriting. Company will enter into (together with Investor and the other shareholders distributing their securities through the underwriting) an underwriting agreement with the underwriter or underwriters selected by Investor for the underwriting, provided that the underwriting agreement is in customary form and is reasonably acceptable to Company.
(c) Notwithstanding the foregoing, if Company furnishes to Investor a certificate signed by the President of Company stating that in the good faith judgment of the Board of Directors of Company, it would be detrimental to Company and its shareholders for the registration statement to be filed and it is therefore essential to defer the filing of the registration statement, Company will have the right to defer the filing for a period of not more than ninety (90) days after receiving a Demand Request (receipt of the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingrequest of investor; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if may not utilize this right more than once in any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registrationtwelve-month period.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 Company will not be unreasonably withheld. No Person may participate in obligated to prepare, file or to take any action to effect any registration pursuant to this Section 4.01(a) unless such Person 2:
(i) agrees to sell such Person’s Registrable Securities on Within one year from the basis provided in any underwriting arrangements described above and date hereof;
(ii) completes After Company has effected a prior registration pursuant to this Agreement 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 has been declared or ordered effective; or
(iii) During the period starting with the date ninety (90) days prior to (A) such PersonCompany’s ownership good faith estimate of his or its Registrable Securities to be transferred free and clear the date 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 Securitiesfiling of, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 ending on the basis of the number of Registrable Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date one hundred eighty (or, if longer, 90 180) days after the effective date of the of, a registration statement contemplated by clause (ii) below) if (i) at the time the subject to Sections 1 or 2 hereof; provided that 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 is using reasonable efforts to cause such registration statement (but would not be required if such registration statement were not filed), and the Board 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncebecome effective.
Appears in 1 contract
Sources: Registration Rights Agreement (Slaight Communications Inc.)
Demand Registration. (a) Any Investor At any time following the date hereof and expiration or waiver of any lockup applicable to such Holders party hereto, the Holder may request, request in writing (a “Demand Request”), that all or part of the Company effect the registration Registrable Securities held by them shall be registered under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding The Company shall effect the foregoing, no Demand Request will be effective hereunder unless the proposed registration of all such or such part of Registrable Securities as soon as practicable; provided that (i) the Company shall not be required to be sold by effect any registration under this Section 3.2 within a period of ninety (90) days following the Holders requesting effective date of a previous registration for which the Demand Registration Holder had an opportunity to participate, and (the “Requesting Holders,” which term ii) this provision shall include parties deemed “Requesting Holders” not apply if a shelf registration on Form S-3, as applicable, has been filed pursuant to Section 4.01(f3.3 and is effective and available for use. The Company shall not be required to effect (x) hereofmore than three (3) represent, registrations in any 12 month period under this Section 3.2 requested by the Holder; or (y) any offering where the reasonably expected gross proceeds to the Holder from such offering is less than $35.0 million. If the Company shall furnish to the Holder a certificate signed by the Chief Executive Officer of the Company stating that in the aggregate, more than 35% good faith judgment of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify Board it would be seriously detrimental to the number of Registrable Securities proposed Company or its shareholders for a registration under this Section 3.2 to be sold. Subject to Section 4.01(g)effected at such time, the Company shall file have the right to defer such registration for a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 period of not more than sixty (60) days after receiving a Demand Request (receipt of the “Required Filing Date”) and shall use all commercially reasonable efforts to cause request of the same to be declared effective by the SEC (orHolder under this Section 3.2, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, provided that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 utilize this right more than twice in any registration pursuant to Section 4.01(atwelve (12) unless such Person month period (i) agrees to sell such Person’s Registrable Securities on which can be, for the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnairesavoidance of doubt, 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 Securities 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 Securities, and the liability of each such Person will be in proportion theretorun consecutively), and provided, further, that the Company shall not provide the Holder with the reason for the deferral unless the Holder has agreed to receive such liability will be limited information. The Holder may elect to withdraw from any offering pursuant to this Section 3.2 by giving written notice to the net amount received by such Person from Company and the sale underwriter(s) of his or its Registrable Securities pursuant request to withdraw prior to the effectiveness of the Registration Statement filed with the SEC with respect to such registration.
(e) No securities Demand Registration. If the Holder withdraws from a proposed offering relating to be sold for the account of any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration to then either the extent that Holder shall reimburse the Company for the costs associated with the withdrawn Demand Registration (in which case such registration shall not count as a Demand Registration provided for in this Section 3.2) or such withdrawn registration shall count as a Demand Registration provided for in this Section 3.2. Notwithstanding any other provision of this Section 3.2, if the managing underwriter or underwriters shall advise advises the Company or the Requesting Holders Holder in writing that marketing factors require a limitation on the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). Furthermore, in the event the managing underwriter or underwriters shall advise the Company dollar amount or the Requesting Holders that even after exclusion number of all securities of other Persons pursuant shares to the immediately preceding sentencebe underwritten, then the amount of Registrable Securities proposed to be included registered shall be reduced appropriately; provided that in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the any event all Registrable Securities of held by the Requesting Holders Holder and which are requested 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 Securities requested to must be included in such registration by each such Requesting Holder.
(f) Upon receipt of prior to any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt shares of the Company’s notice, to elect to include in such Demand Registration such portion of their Registrable Securities as they may requestincluding shares held by persons other than the Holder. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but shall not the preparation) of a register securities for sale for its own account in any registration statement required by Section 4.01(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 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 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 requested pursuant to this Section 4.01(g) shall be lifted, and 3.2 unless permitted to do so by the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) written consent 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceHolder.
Appears in 1 contract
Demand Registration. (ai) Any Investor may requestIf any 50% Holder shall give notice to the Company, in writing (a “Demand Request”)at any time after the First Anniversary Date and prior to the Expiration Date, to the effect that the Company effect the registration such 50% Holder desires to register under the Securities Act of all or part of its or their any Registrable Securities under such circumstances that a public distribution (a “Demand Registration”). Notwithstanding within the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% meaning of the total number Act) of Registrable Securities held by all Holders.
(b) Each Demand Request any such securities shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)involved, then the Company shall promptly, but no later than 30 days after receipt of such notice, use its reasonable best efforts to file a post-effective amendment to the Registration Statement or a new registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligibleAct, to become automatically effective) the end that Registrable Securities of such 50% Holder may be publicly sold under the Act as promptly as practicable after thereafter, and the Company shall use its best efforts to cause such filingregistration to become effective as soon as possible; provided, however, that such 50% Holder shall furnish the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a)with appropriate information in connection therewith as the Company may reasonably request in writing; provided, further, and provided further that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders Company shall then have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective available current financial statements (unless the Requesting Holders withdraw all their unavailability of current financial statements results from the Company's fault or neglect). The 50% Holder may, at its option, cause Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holderunder this Section 6(c) on a maximum of two occasions during the four-year period beginning on the First Anniversary Date and ending on the Expiration Date.
(fii) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 Within ten 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 receiving 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 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 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 notice pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g6(c), the Company shall promptly give notice to each other Holder (but in whether such Holder holds a Warrant or has exercised the Warrant and holds any event within ten daysof the Securities), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating advising that the Company is deferring proceeding with such post-effective amendment or new registration statement and offering to include therein Registrable Securities held by such other Holders, provided that they shall furnish the Company with such appropriate information in connection therewith as the Company shall reasonably request in writing.
(iii) All costs and expenses (including without limitation, legal, accounting, printing, mailing and filing fees) of the first such registration effected under this Section 6(c) shall be borne by the Company, except that the Holder(s) whose Registrable Securities are included in such registration shall bear the fees of their own counsel and any underwriting discounts or commissions applicable to the securities sold by them. All costs and expenses of the second such registration effected under this Section 6(c) shall be borne by the Holder(s) whose Registrable Securities are included in such registration.
(iv) The Company shall cause each registration statement or post- effective amendment filed pursuant to this Section 4.01(g6(c) to remain current under the Act (including the taking of such steps as are necessary to obtain the removal of any stop order) for a period of at least six months (and a general statement of for up to an additional three months if requested by the reason for such deferral and an approximation of Holder(s)) from the anticipated delay. Within 20 days after receiving such certificateeffective date thereof, the holders of a majority of or until all the Registrable Securities held by the Requesting Holders and for which included in such registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncesold, whichever is earlier.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestIf the Company shall receive from Initiating Holders a written request that the Company effect any registration with respect to not less than 20% of the shares of Common Stock which are Registrable Securities, in writing the Company shall:
(a “Demand Request”)i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable use its best efforts to register (including, without limitation, the execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities which the Initiating Holders request to be registered within twenty (20) days after receipt of such written notice from the Company; provided, that the Company effect shall not be obligated to file a registration statement pursuant to this Section 2(a):
(A) prior to the date which is 180 days from the date the Company consummates its initial offering of Common Stock to the public pursuant to a registration statement filed under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding Act, which offering requires such Common Stock to become registered under the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representExchange Act; provided however that, in the aggregate, more than 35% event the Company receives a written request pursuant hereto to effect a registration prior to the date which is six (6) months from the date of the total number consummation of the Company's initial public offering, the Company shall prepare the registration statement covering the Registrable Securities so that it may be filed as soon as practicable upon the expiration of such six (6) month period;
(B) in any particular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(C) within 120 days following the effective date of any registered offering of the Company's securities to the general public in which the Holders of Registrable Securities held by shall have been able effectively to register all Holders.Registrable Securities as to which registration shall have been requested;
(bD) Each Demand Request shall specify in any registration having an aggregate offering price (before deduction of underwriting discounts and expenses of sale) of less than $5.0 million; or
(E) after the number of Registrable Securities proposed Company has effected one such registration pursuant to be soldthis Section 2(a). Subject to Section 4.01(gthe foregoing clauses (A) through (E), the Company shall file a registration statement under covering the Registrable Securities Act so requested to effect be registered as soon as practicable after receipt of the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (request or requests of the “Required Filing Date”) Initiating Holders and shall use all commercially reasonable best efforts to cause the same to be have such registration statement promptly declared effective by the SEC (or, if eligible, Commission whether or not all Registrable Securities requested to become automatically effective) as promptly as practicable after such filingbe registered can be included; provided, however, that if the Company need effect only two shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed within such ninety-day (290-day) Demand Registrations pursuant period and it is therefore essential to Demand Requests made by Holders defer the filing of Registrable Securities pursuant such registration statement, the Company shall have an additional period of not more than ninety (90) days after the expiration of the initial ninety-day (90-day) period within which to Section 4.01(a)file such registration statement; provided, furtherthat (i) during such time the Company may not file a registration statement for securities to be issued and sold for its own account and (ii) the Company shall not utilize this right more than once in any twelve (12) month period. Notwithstanding anything to the contrary contained herein, that if any the obligation of the Company under this Section 2(a) shall be deemed satisfied only when a registration statement covering all Registrable Securities requested to be registered pursuant to a Demand Request are excluded from specified in notices received as aforesaid, for sale in accordance with the applicable Demand Registration pursuant to Section 4.01(e) belowmethod of disposition specified by the Required Holders, the Holders shall have the rightbecome effective and, with respect to each if such exclusionmethod of disposition is a firm commitment underwritten public offering, to request one additional Demand Registrationall such Registrable Securities shall have been sold pursuant thereto.
(cb) A registration will not count as a Demand Registration until it has become effective (unless If the Requesting Initiating Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant intend to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request. In such event, the Company shall include such information in the written notice referred 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 subsection 2(a)(i). If so requested in writing by the Company, which consent the Initiating Holders shall not be unreasonably withheldnegotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration. No Person may participate in The right of any Holder to registration pursuant to Section 4.01(a) unless 2 shall be conditioned upon such Person (i) agrees to sell such Person’s Registrable Securities on the basis provided Holder's participation 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect Holder's Registrable Securities in the price or success underwriting (unless otherwise mutually agreed by a majority in interest of the offering Initiating Holders and such Holder) to the extent provided herein. The Company shall (a “Material Adverse Effect”together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2(a). Furthermore, in the event if the managing underwriter or underwriters shall advise the Company or the Requesting Holders determines that even after exclusion marketing factors require a limitation of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal the number of shares which to be underwritten, the securities of the Company is so advised can be sold in such offering without a Material Adverse Effect held by directors, officers or employees and such shares by shareholders other than the Initiating Holders shall be allocated excluded from such registration pro rata among the Requesting Holders (based on the basis number of securities each wishes to so register) to the extent so required by such limitation, and if a limitation of the number of shares is still required, then the managing underwriter may limit the number of Registrable Securities to be included in the registration, provided that no such reduction may reduce the securities being offered by the Holders to less than twenty-five percent (25%) of the total securities requested to be included in such registration by each and underwriting, allocated pro rata among the Initiating Holders based on the number of Registrable Securities otherwise requested to be included in such Requesting Holder.
registration (fand, in event such reduction results in less than twenty-five percent (25%) Upon receipt of the total securities requested to be included in such underwriting actually being included, such registration shall be cancelled and shall not count as a registration request under this Section 2). If any Holder disapproves of the terms of any Demand Requestsuch underwriting, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration he may elect to all other Investors, who shall have the right, exercisable withdraw therefrom by written notice to the Company within 20 days of their receipt of and the Company’s notice, to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f)managing underwriter.
(gc) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date In addition to all other rights 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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g)Holders set forth herein, the Company shall promptly (but in be obligated to, without any event within ten days)prior demand from the Holders, upon determining file a Registration Statement 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 4.01(g) 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 register the Registrable Securities held by and use its best efforts to cause such Registration Statement to become effective as soon as practicable following 180 days after the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice Company consummates its initial offering of Common Stock to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncepublic.
Appears in 1 contract
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that At any time during the Company effect one-year period following the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% first anniversary of the total number date of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)this Agreement, the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders Holder shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, right exercisable by written notice to the Company within 20 days of their receipt (the "Demand Registration Request"), to have the Company prepare and file with the Commission, at the sole expense of the Company’s noticeCompany (except as herein after provided), in respect of up to elect 250,000 (as hereafter adjusted as necessary to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting reflect any stock split, reverse stock split, recaptialization, or other similar transaction affecting the shares prior to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date of such Registration Statement) of the Shares (less the number of shares previously registered pursuant to Section 1 above) a Registration Statement so as to permit a public offering and sale of the Shares for a period of nine months; provided that notwithstanding the provisions of Sections 1 and 2 hereof, the Holder agrees not to sell or otherwise dispose of more than 925,000 shares during the two-year priod following the date of this Agreement, pursuant to a registration statement contemplated statement, Rule 144 under the Act, or otherwise.
(b) At any time during the one-year period following the second anniversary of the date of this Agreement, the Holder may submit to the Company a Demand Registration Request, to have the Company prepare and file with the Commission, at the sole expense of the Company (except as herein after provided), in respect of up to 925,000 (as hereafter adjusted as necessary to reflect any stock split, reverse stock split, recapitalization, or other similar transaction affecting the Shares prior to the effective date of such Registration Statement) of the Shares a Registration Statement so as to permit a public offering and sale of the Shares for a period of nine months; provided that if the Holder intends to distribute the Shares by clause means of a "firm commitment" underwriting, then the Holder shall so notify the Company pursuant to the Demand Registration Request. Any underwriter selected by the Holder shall be reasonably acceptable to the Company.
(iic) belowAt any time during the one-year period following the third anniversary of the date of this Agreement, the Holder shall have the right to submit to the Company a Demand Registration Request, to have the Company prepare and file with the Commission, at the sole expense of the Company (except as herein after provided), in respect of up to the aggregate number of the Shares not previously registered pursuant to Section 1 or Section 2(a)), a Registration Statement so as to permit a public offering and sale of the Shares for a period of nine months; provided that if the Holder intends to distribute the Shares by means of a "firm commitment" underwriting, then the Holder shall so notify the Company pursuant to the Demand Registration Request. Any underwriter selected by the Holder shall be reasonably acceptable to the Company.
(d) if Notwithstanding any provision of this Section 2 to the contrary, if, at the time a Demand Registration Request is given to the Company under Section 2 hereof (i) at the time the Company receives the Demand Requestis engaged in negotiations with respect to an acquisition, merger, financing or other material event which would require the Company or any of its Subsidiaries are engaged to file a Form 8-K in confidential negotiations the event that such acquisition, merger, financing 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 determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders material event is consummated or has otherwise occurred or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), event the Company shall promptly (but in any event within ten days), upon determining furnish to seek such deferral, deliver to each Requesting the Holder a certificate signed by an the chief executive officer of the Company stating that in the good faith judgment of the Company is deferring such filing pursuant to this Section 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice its investment banker that it would be detrimental to the Company; if withdrawn, Company and its shareholders for the Demand Request shall be deemed not Company to have been made for all purposes of this Agreement. The Company may immediately proceed with a registration statement and it is therefore essential to defer the filing of such registration statement, then, in each such case, the Company will have the right to defer such filing for a particular registration statement pursuant period not to exceed one hundred and eighty (180) days.
(e) Nothing herein contained shall require the Company to undergo an audit, other than in the ordinary course of business, or as required in connection with the delivery of a "comfort letter" for purposes of effecting a Registration Statement as set forth in this Section 4.01(g) only once2.
Appears in 1 contract
Sources: Registration Rights Agreement (Take Two Interactive Software Inc)
Demand Registration. (a) Any Investor may requestIf at any time after the expiration of six months following the closing date of the IPO, in writing the Company receives a request from (i) Holders of thirty percent (30%) of the Registrable Securities then outstanding or (ii) Viking, so long as it remains a “Demand Request”)Major Investor, that the Company effect a registration with respect to the registration under the Securities Act of all or part of its or their Registrable Securities then outstanding having an anticipated aggregate offering price to the public of not less than $5 million, then the Company shall use its best efforts to: (a “Demand Registration”). Notwithstanding i) within ten (10) days after the foregoingdate such request is given, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration give notice thereof (the “Requesting Demand Notice”) to all Holders other than the Initiating Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f; and (ii) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand on Form S-1 or any similar long-form registration statement (a “Long-Form Registration Statement”) or, if available, a registration statement on Form S-3 or any similar short-form registration statement (a “Short-Form Registration Statement”), other than a Shelf Registration Statement, as promptly soon as possible practicable, and in any event within 90 sixty (60) days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective date such request is given by the SEC Initiating Holders, in the case of a Long-Form Registration Statement or within thirty (or30) days after the date such request is given by the Initiating Holders, if eligiblein the case of a Short-Form Registration Statement, to become automatically effective) as promptly as practicable after such filing; provided, however, in each case covering all Registrable Securities that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Initiating Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one and any additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice Holder to the Company within 20 twenty (20) days of their receipt the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(b).
(b) If the Company qualifies to use a Short-Form Registration Statement after the date that a Long-Form Registration Statement is filed or declared effective, the Company may convert such Long-Form Registration Statement into a Short-Form Registration Statement.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s Chairman of the Board stating that in the good faith judgment of the Company’s noticeBoard of Directors, after consultation with outside counsel to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (orCompany, 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 determines in good faith that such disclosure it would be materially detrimental to the Company and its stockholders shareholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, then the Company shall have the right, upon giving prompt written notice of such action to the Holders, to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right or the right under Section 2.3(b) (A) more than once in any twelve (12)-month period; or (iiB) prior for an aggregate period exceeding ninety (90) days in any twelve (12)-month period.
(d) The Company shall not be obligated to receiving effect, or to take any action to effect, any registration pursuant to this Section 2.1 (i) during the Demand Requestperiod that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is sixty (60) days after the Board had determined effective date of, a registration statement pertaining to effect a registered an underwritten public offering of the Company’s securities, and (ii) after the Company has effected five (5) registrations pursuant to Section 2.1 if the Initiating Holders for at least two (2) of such registrations shall have been Viking or its Affiliates. A registration shall not be counted as “effected” for purposes of this Section 2.1 until such time as the applicable registration statement has been declared effective by the SEC and remains effective for not less than one hundred and twenty (120) days without any occurrence of a Material Adverse Change (or such shorter period as shall terminate when all Registrable Securities covered thereunder have been sold), unless the Initiating Holders withdraw their request for such registration, elect not to reimburse the Company for the Company’s account registration expenses therefor, 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 forfeit their right to effect such offering. A deferral of the filing of a one demand registration statement pursuant to this Section 4.01(g) shall be lifted2.7, and the requested in which case such withdrawn 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 preceding sentence, the proposed registration counted as “effected” for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once2.1.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Adaptive Biotechnologies Corp)
Demand Registration. (a) Any Investor may requestAt any time after November 29, in writing (2001, the ------------------- Purchaser shall have the right to deliver to the Company a “Demand Request”), written notice demanding that the Company effect file, in accordance with the registration provisions of this Article II, a Registration Statement under the Securities Act covering the Registration of all or part of its or their the Registrable Securities (a “Demand Registration”). Notwithstanding which can legally be Registered at the foregoing, no Demand Request will be effective hereunder unless time the proposed Registrable Securities Registration Statement is to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holdersdeclared effective.
(b) Each Demand Request If the Company gives a notice of its election to pre-pay any portion of the Note prior to November 29, 2001, and the Purchaser elects to convert all or any portion of the principal outstanding under the Note into Conversion Shares in accordance with the terms of the Note the Purchaser shall specify have the number of right to deliver to the Company a written notice demanding the Company file a Registration Statement under the Securities Act covering all the Registrable Securities proposed which can legally be Registered at the time the Registration Statement is to be solddeclared effective.
(c) The Company shall prepare and on or prior to twenty (20) days after any demand under Section 2.1(a) or 2.1(b) file with the SEC a Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available) to effect a registration of all of the Registrable Securities which can legally be Registered at the time the Registration Statement is to be declared effective. Subject The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to Section 4.01(g(and subject to the approval of the Initial Purchaser (which approval shall not be unreasonably withheld or denied)) and its counsel prior to its filing or other submission.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall file be entitled to postpone or suspend, for a registration statement under the Securities Act period of time not to effect the Demand Registration as promptly as possible and in any event within 90 exceed thirty (30) days after receiving a Demand Request (the “Required Filing Date”"Blackout Period"), the filing of a Registration --------------- Statement pursuant to this Section 2.1, if the Board of Directors of the Company determines in good faith that any such filing would:
(i) and shall use all commercially reasonable efforts materially impede, delay or otherwise interfere with any pending material financing, acquisition, corporate reorganization or other transaction involving the Company for which the Board of Directors has authorized negotiations;
(ii) materially impair the ability to cause the same to be declared effective consummate any pending material offering or sale of any class of securities by the SEC Company; or
(oriii) require disclosure of material nonpublic information which, if eligibledisclosed at such time, would be materially harmful to become automatically effective) as promptly as practicable after such filingthe interests of the Company and its stockholders; provided, however, that the Company need effect shall only two (2) Demand Registrations pursuant be entitled to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, exercise its rights with respect to each such exclusion, to request one additional Demand Registrationthe Blackout Period once during any 12-month period.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor The Holder or Holders of Registrable Shares constituting at least 1,500,000 outstanding Registrable Shares (together with all other Shareholders joining in such demand as provided below, the "INITIAL REQUESTING HOLDERS"), may at any time make a written request to Orbital that Orbital file a Registration Statement or similar document under the Act with respect to all or any part of such Holder's or Holders' Registrable Shares (a "DEMAND REGISTRATION"). Such Registration shall be a "shelf" Registration Statement pursuant to Rule 415 under the Act (or a successor provision), if so requested by a majority of the participating Holders and if Orbital is eligible therefore at such time (for greater certainty, the Registration Statement need not be a Shelf Registration Statement). Within 10 Business Days after receipt of such request, in writing (a “Demand Request”), that the Company effect the registration under the Securities Act Orbital shall give written notice of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the such Demand Registration request (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify including therein the number of Registrable Securities proposed Shares included in such demand and the parties making such demand) to all other Holders of Registrable Shares (the "DEMAND NOTICE"). Such other Holders will have the right to join in making such a demand by giving written notice to Orbital within 10 Business Days after the date of the Demand Notice of such Holder's election to participate in such Demand Registration and the number of such Holder's Registrable Shares to be soldincluded therein. Subject to Section 4.01(gthe provisions of SECTION 6.1(b), Orbital shall cause such Registration Statement or similar document to be filed with the Commission and shall include in such Registration Statement the Registrable Shares which Orbital has been requested to register by the Initial Requesting Holders, and to cause all such Registrable Shares to be registered under the Act within 180 days of receipt of the Initial Requesting Holders' request. After Orbital has effected three (3) such registrations pursuant to this SECTION 6.1(a), the Company shall file a registration statement under the Securities Act to effect the Demand related Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be Statements have been declared effective by and the SEC (ordistribution contemplated thereunder completed within the time frame specified in Section 6.1(b), if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders Orbital shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registrationno further obligation under this SECTION 6.1(a); provided, however, that if, after no Holder shall be entitled to have the Registrable Shares held by it has become effective, an offering of Registrable Securities covered by such Registration unless such Holder is in compliance with SECTION 6.3(j) hereof. No Demand Registration shall be effected pursuant to this SECTION 6.1(a) during any period in which a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will Registration Statement shall have become and be deemed not to have been effected and will not count as a Demand Registrationmaintained effective.
(db) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Orbital shall use its reasonable best efforts to keep each such Shelf Registration is a “firm commitment” underwritten offering, continuously effective in order to permit the Requesting Holders of a majority of the Registrable Securities Prospectus forming part thereof to be registered in a Demand Registration shall select usable by the investment banking firm or firms to manage Holders until the underwritten offering, provided that such selection shall be subject to the consent earlier of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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) the date when all the Registrable Shares have been sold pursuant to such Person’s ownership of his Shelf Registration Statement or its Registrable Securities to be transferred free Rule 144 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). Furthermoredate on which, in the event the managing underwriter or underwriters shall advise the Company or the Requesting Holders that even after exclusion written opinion of all securities of other Persons pursuant counsel to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice addressed to the Company within 20 days Holders and to Orbital, all outstanding Registrable Shares of their receipt of Orbital are eligible for resale without registration under the Company’s notice, to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration Act in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(gRule 144(k) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 successor provision thereto (but would not be required if such registration statement were not filed), and the Board 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), the Company shall promptly (but in any event within ten dayssuch case, such period being called the "EFFECTIVENESS PERIOD"), 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 4.01(g) 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 Securities 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 Orbital shall be deemed not to have used their reasonable best efforts to keep the Registration Statement effective during the requisite period if Orbital voluntarily takes any action that would result in Holders covered thereby not being able to offer and sell any such Registrable Shares during that period, unless (x) such action is required by applicable law or the rules of any national securities exchange or other market on which any of the Registrable Shares are then listed or quoted, or (y) any event contemplated by SECTION 6.3(b)(2)(iii) below occurs and Orbital acts promptly in good faith and for valid business reasons in suspending use of the Prospectus until the requisite changes have been made and Orbital thereafter promptly complies with the requirements of SECTION 6.3(h) below.
(c) Notwithstanding anything to the contrary contained in this ARTICLE 6, Orbital shall have the right (the "SUSPENSION RIGHT") to defer such filing (or suspend sales under any filed registration thereunder) for all purposes a period of this Agreement. The Company may not more than 90 days during any 12-month period (a "BLACK-OUT PERIOD"), if Orbital shall furnish to the Holders a certificate signed by the President or any other executive officer of Orbital stating that, either (i) in the good faith judgment of Orbital, the continued effectiveness of the Registration Statement would require Orbital to disclose a material financing, acquisition or other corporate transaction, and the Board of Directors shall have determined in good faith that it would be detrimental to Orbital and its shareholders to file such Registration Statement or amendment thereto at such time (or continue sales under a filed Registration Statement) or (ii) Orbital plans to conduct an underwritten offering of its equity securities during such Black-Out Period and, in each case, therefore, Orbital has elected to defer the filing of such Registration Statement (or suspend sales under a particular registration statement filed Registration Statement) provided, however, that Orbital shall have the obligation (with respect to both (i) and (ii) of this Section 6.1(c)) to file any such deferred Registration Statement or lift any suspension of sales under a filed Registration Statement as soon as such filing is no longer detrimental, and in such circumstances, the Holder can withdraw the Demand Registration without prejudice to making it again.
(d) Orbital agrees not to issue any Orbital Stock or any securities convertible into or exchangeable or exercisable for Orbital Stock (other than securities issued pursuant to this Section 4.01(g) only once.Orbital's option or other benefit plans, its 5% Convertible Subordinated Notes Due 2002, securities issued by Orbital not
Appears in 1 contract
Sources: Exchange and Registration Rights Agreement (Orbital Sciences Corp /De/)
Demand Registration. (a) Any Investor may requestSubject to the terms and conditions of this Agreement, in writing (a “Demand Request”including Section 2(c), if at any time following January 1, 2013, the Company receives a written request from one or more Holders that the Company effect the registration register under the Securities Act of all or part of its or their Registrable Securities representing at least 500,000 shares (or, in the case of a Registration Statement on Form S-1, 1,000,000 shares) of Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting the Common Stock), then the Company shall file, as promptly as reasonably practicable but no later than the Filing Deadline, a Registration Statement under the Securities Act covering all Registrable Securities that the requesting Holders request to be registered (a “Demand Registration”). Notwithstanding The Registration Statement shall be on Form S-3 (except if the foregoing, no Demand Request will be effective hereunder unless Company is not then eligible to register for resale the proposed Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use all reasonable efforts to cause the Registration Statement to be declared effective or otherwise to become effective under the Securities Act no later than the Effectiveness Deadline, and shall use all reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the earlier of (i) the date on which the requesting Holders notify the Company in writing that the Registrable Securities included in such Registration Statement have been sold or the offering therefor has been terminated or (ii) 180 days following the date on which such Registration Statement was declared effective by the Holders requesting Commission; provided that such 180-day period shall be extended automatically by one Business Day for each Business Day that the Demand use of such Registration (Statement or Prospectus is suspended by the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” Company pursuant to any Scheduled Black-out Period, pursuant to Section 4.01(f2(d) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holdersor pursuant to Section 5(a)(v).
(b) Each Demand Request shall specify If the number of requesting Holders intend to distribute the Registrable Securities proposed to be sold. Subject to Section 4.01(g)covered by the Holders’ request by means of an underwriting, (i) the Holder(s) shall so advise the Company shall file as a registration statement under part of the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests request made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from 2(a) and (ii) the applicable Demand Registration pursuant to Section 4.01(eHolder(s) below, the Holders shall have the rightright to appoint the book-running, with respect managing and other underwriter(s), subject to each such exclusionthe approval of the Company, not to request one additional Demand Registrationbe unreasonably withheld, conditioned or delayed.
(c) A The Company shall not be required to effect a registration will not count as a Demand Registration until it has become effective pursuant to this Section 2: (unless the Requesting Holders withdraw all their Registrable Securities and i) on Form S-1 after 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 Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities effected two registrations pursuant to a registration is interfered with by any stop orderthis Section 2 on Form S-1, injunction or other order or requirement of the SEC or other governmental agency or court, and such registration will be deemed not to registrations have been effected declared or ordered effective and will not count kept effective by the Company as a required by this Agreement; or (ii) more than twice during any single calendar year. The Holders shall be entitled to an unlimited number of Demand RegistrationRegistrations on Form S-3 under this Agreement.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 Notwithstanding anything to the consent of the Companycontrary in this Agreement, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees upon notice to sell such Person’s Registrable Securities on the basis provided requesting Holder(s), the Company may delay the Filing Deadline and/or the Effectiveness Deadline with respect to, or suspend the effectiveness or availability of, any Registration Statement for up to 60 days in the aggregate 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering 12-month period (a “Material Adverse EffectSuspension Period”). Furthermore, in the event the managing underwriter or underwriters shall advise ) if the Company or the Requesting Holders that even after exclusion of all securities of other Persons pursuant furnishes to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration requesting Holder(s) a certificate signed by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 chief executive officer or chief financial officer stating that in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date good faith judgment 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 determines in good faith that such disclosure it would be materially detrimental to the Company and its stockholders for such Registration Statement to be filed or become or remain effective during such Suspension Period because such action would (x) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (y) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (z) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided that any suspension of a Registration Statement pursuant to Section 5(a)(v) shall be treated as a Suspension Period for purposes of calculating the maximum number of days of any Suspension Period under this Section 2(d); and (ii) upon notice to the requesting Holder(s), the Company may delay the Filing Deadline and/or the Effectiveness Deadline with respect to any Registration Statement for a period not to exceed 30 days prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities good faith estimate of the launch date of, and 90 days after the closing date of, a Company initiated registered offering of equity securities (including equity securities convertible into or exchangeable for the Company’s account and Common Stock); provided that (A) the Company had taken substantial steps is actively employing in good faith all reasonable efforts to launch such registered offering throughout such period, (includingB) each requesting Holder is afforded the opportunity to include Registrable Securities in such registered offering in accordance with Section 3, but not limited to, selecting a managing underwriter for and (C) the right to delay or suspend the effectiveness or availability of such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement Registration Statement pursuant to this Section 4.01(g) 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 shall not be exercised by the preceding sentence, Company more than once in any twelve-month period and not more than 90 days in the proposed registration for aggregate in any twelve-month period. If the Company’s account is abandoned. In order to defer the filing of a registration statement Company shall delay any Filing Deadline pursuant to this Section 4.01(g)paragraph (d) for more than ten Business Days, the Company shall promptly (but in any event within ten days), upon determining to seek such deferral, deliver to each Requesting a requesting Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw the demand therefor at any time after such Demand Request ten Business Days so long as such delay is then continuing by giving providing written notice to the Company; if withdrawnCompany to such effect, the Demand Request and any demand so withdrawn shall be deemed not to have been made count as a demand for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to for any purpose under this Section 4.01(g) only once2, including Section 2(c).
Appears in 1 contract
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that If the Company shall be requested by any Holder to ------------------- effect the registration under the Securities Act of Registrable Shares, then the Company shall, within 10 days of such request, deliver a written notice of such proposed registration to all or part holders of its or their outstanding Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the Shares and shall offer to include in such proposed registration any Registrable Securities Shares requested to be sold included in such proposed registration by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request Shares who or which shall specify respond in writing to the number of Registrable Securities proposed to be soldCompany's notice within 15 days after delivery thereof. Subject to Section 4.01(g), the The Company shall file a promptly thereafter effect such registration statement under the Securities Act of the Registrable Shares which the Company has been so requested to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingregister; provided, however, that the Company need -------- ------- shall not be obligated to effect only two any registration under the Securities Act except in accordance with the following provisions:
(2a) Demand Registrations pursuant the Company shall not be obligated to Demand Requests made by Holders of Registrable Securities use its best efforts to file and cause to become effective (A) more than three Registration Statements initiated pursuant to Section 4.01(a2(a); provided, further, provided that if any the Holders were unable to -------- sell at least 90% of the Registrable Securities Shares requested to be registered pursuant to a Demand Request are excluded from included in the applicable Demand Registration last registration pursuant to Section 4.01(e2(a) belowas a result of an underwriter's cutback, then additional registrations shall be added to this Section 2(b)(i) until the Holders shall have foregoing condition is satisfied, or (B) any Registration Statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the right, Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(b) the 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 at the time of such request the Company is engaged in a Material Transaction; and
(i) with respect to each such exclusionany registration pursuant to Section 2(a), to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder may include in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration)registration any Primary Shares; provided, however, -------- ------- that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that if the managing underwriter or underwriters shall advise advises the Company or the Requesting Holders in writing that the inclusion of such securities will materially all Registrable Shares, Primary Shares and adversely affect the price or success of the 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 Securities Other Shares proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effectregistration would interfere with the successful marketing (including pricing) of all such securities, the Registrable Securities 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 then the number of Registrable Securities requested Shares, Primary Shares and Other Shares proposed to be included in such registration by each such Requesting Holdershall be included in the following order:
(A) first, the Registrable Shares; (B) second, the Primary Shares; and (C) third, the Other Shares.
(fii) Upon receipt of any Demand Request, A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable Commission by written notice to the Company within 20 days of their receipt of from the Company’s notice, to elect to include in Investor and such Demand Registration such portion of their Registrable Securities rescinded registration shall not count as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 initiated pursuant to this Section 4.01(g2 for purposes of subclause (A) 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 subsection (iib) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceabove.
Appears in 1 contract
Sources: Registration Rights Agreement (Alliance Imaging Inc /De/)
Demand Registration. (a) Any Investor may requestAt any time following the expiration of the Lockup Period, upon the written request of a Holder (in writing (such capacity, a “Demand RequestParty”), ) requesting that the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities and specifying the amount and intended method of disposition thereof, the Company will (i) promptly give written notice of such requested registration to any other Holders pursuant to Section 2.2 and other holders of Securities entitled to notice of such registration, if any, and (ii) as expeditiously as possible, and in any event within forty-five (45) days after a “request for registration pursuant to this Section 2.1(a) is given to the Company, use its reasonable best efforts to file a registration statement to effect the registration under the Securities Act of:
(A) such Registrable Securities which the Company has been so requested to register by the Demand Registration”)Party in accordance with the intended method of disposition thereof;
(B) the Registrable Securities of any other Holders which the Company has been requested to register by written request given to the Company within fifteen (15) days after the giving of such written notice by the Company pursuant to Section 2.2; and
(C) all shares of Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 2.1. Notwithstanding the foregoing, no Demand Request will the Company shall not be obligated to file a registration statement relating to any registration request under this Section 2.1(a):
(x) within a period of sixty (60) days (or such lesser period as the managing underwriters in an underwritten offering may permit) after the effective hereunder unless date of any other registration statement relating to any registration request under this Section 2.1(a) or relating to any registration referred to in Section 2.2 or 2.3; or
(y) if the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration Company has previously effected one (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” 1) such registration pursuant to this Section 4.01(f2.1(a) hereof) represent, in at the aggregate, more than 35% request of the total number of Registrable Securities held by all Holdersa Holder.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the The Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable best efforts to cause the same registration statement filed pursuant to Section 2.1(a) to be declared effective by the SEC (or, if eligible, such registration statement is not an automatic shelf registration statement) within ninety (90) days after the filing date thereof. A demand registration shall not be deemed to become automatically effectivehave been effected and shall not count for purposes of Section 2.1(a): (i) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to unless a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, registration statement with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it thereto has become effective and has remained effective for a period of at least ninety (unless the Requesting Holders withdraw 90) days (or such shorter period in which all their Registrable Securities and the Company has performed its obligations hereunder included in all material respectssuch registration statement have actually been sold thereunder), in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that (ii) if, after it has become effective, an offering of Registrable Securities pursuant such registration statement becomes subject prior to a registration is interfered with by ninety (90) days after effectiveness to any stop order, injunction or other order or requirement of the SEC or other governmental agency Governmental Authority for any reason or court, (iii) if the conditions to closing specified in the underwriting agreement entered into in connection with such registration will be deemed statement are not to have been effected and will not count as satisfied, other than by reason of any act or omission by such Demand Party.
(c) Each registration statement prepared at the request of a Demand RegistrationParty shall be effected on such appropriate form as requested by the Demand Party and as shall be reasonably acceptable to the Company.
(d) Requesting Holders can request a “firm commitment” underwritten offering. The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 2.1.
(e) If a Demand Registration is a “firm commitment” requested registration pursuant to this Section 2.1 involves an underwritten offering, the Requesting Holders of a majority of Demand Party shall have the Registrable Securities right to be registered in a Demand Registration shall select the investment banking firm banker or firms bankers and managers to manage administer the underwritten offering, provided that such selection shall be subject to including the consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 arrangementslead managing underwriter; provided, however, that no such Person investment banker or bankers and managers shall be required reasonably satisfactory to make any representations or warranties the Company. For the avoidance of doubt, each applicable Holder participating in connection with any such registration other than representations an underwritten offering shall be responsible for paying the underwriting discounts and warranties as commissions applicable to (A) such Person’s ownership of his or its Holder's Registrable Securities to be transferred free and clear of all liens, claims and encumbrances, (B) sold by the underwriters in 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registrationunderwritten offering.
(ef) No securities If a requested registration pursuant to be sold for the account of any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration to the extent that this Section 2.1 involves an underwritten offering and the managing underwriter or underwriters shall advise advises the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). Furthermorethat, 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 sentenceits opinion, the amount number of Registrable Securities proposed requested to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable registration (including Securities of the Requesting Holders Company which are not Registrable Securities) exceeds the number which can be sold in such offering, so as to be likely to have an adverse effect on the price, timing or distribution of the Securities offered in such offering, then the number of such Securities 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 registration shall be allocated pro rata among in the Requesting Holders on the basis following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such registration by each the Demand Party and such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, Holders 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 such portion of their Registrable Securities as they may request. All Holders requesting requested to have their Registrable Securities included in a Demand Registration such registration pursuant to Section 2.2, which, in accordance with the preceding sentence opinion of the managing underwriter, can be sold without having the adverse effect referred to above, which number of Registrable Securities shall be deemed allocated pro rata among the Demand Party and the requesting Holders on the basis of the relative number of Registrable Securities requested to be “Requesting Holders” for purposes included in such registration statement; (ii) second, Securities the Company proposes to sell; and (iii) third, all other Securities of this Section 4.01(f)the Company duly requested to be included in such registration statement by holders thereof who have then-existing registration rights with respect to such Securities, which, in the opinion of the managing underwriter, can be sold without having the adverse effect referred to above, which number of Securities shall be allocated pro rata among such other holders on the basis of the amount of such other Securities requested to be included or such other method determined by the Company.
(g) The Company may defer shall not be obligated to maintain the filing (but not the preparation) effectiveness of a registration statement required by under the Securities Act filed pursuant to this Section 4.01(a2.1 for a period longer than ninety (90) 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 Requestdays. In addition, the Company shall be entitled to postpone (upon written notice to all applicable Holders) for up to two occasions, and in no event for more than an aggregate of one hundred twenty (120) days, the filing or any the effectiveness of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such a registration statement filed pursuant to this Section 2.1 (but would not be required no more than twice in any period of twelve (12) consecutive months) if such registration statement were not filed), and the Board Audit Committee determines in good faith and in its reasonable judgment that the filing or effectiveness of such registration statement would cause the disclosure would be materially detrimental to of material, non-public information that the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect has a registered underwritten public offering of the Company’s Securities bona fide business purpose for the Company’s account and preserving as confidential. If 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 shall so postpone the filing of a registration statement pursuant statement, the Holders of Registrable Securities to this Section 4.01(gbe registered shall have the right to withdraw the request for registration by giving written notice from such Holders within forty‑five (45) shall be lifted, and days after receipt of the requested registration statement shall be filed forthwith, ifnotice of postponement (and, in the case event of a deferral such withdrawal, such request shall not be counted for purposes of determining the number of requests for registration to which the Holders are entitled pursuant to clause (iSection 2.1(a) of the preceding sentenceor 2.2(a), the negotiations or other activities are disclosed or terminated, or, in as the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(gmay be), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor From and after the second anniversary of the Closing Date, Holders of at least 50% of the outstanding Transfer Restricted Notes, subject to Section 3(e) below, (the "Initiating Holders") may request, in writing (a “Demand Request”)writing, that the Company effect the ------------------ registration under the Securities Act of all or part of its or their Registrable Securities Transfer Restricted Notes. Within 10 days after receipt of any such request, the Company will give notice of such request to all other Holders of Transfer Restricted Notes (a “Demand Registration”"Other Holders"). Thereafter, the Company will use all ------------- commercially reasonable efforts to effect the registration on an appropriate form under the Securities Act and will include in such registration, subject to Section 3(e) below, all Transfer Restricted Notes held by the Initiating Holders and Other Holders with respect to which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company's notice. All registrations initiated by an Initiating Holder pursuant to this Section 3(a) are referred to herein as "Demand Registrations." Notwithstanding anything herein to the foregoing-------------------- contrary, no the Company need not effect any requested Demand Request will be effective hereunder Registration unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% expected gross proceeds of the total number of Registrable Securities held by all Holderssuch registration exceed $10,000,000.
(b) Each Demand Request shall specify Notwithstanding anything in Section 3(a) above to the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)contrary, the Company shall file not be obligated to take any action to effect any such registration pursuant to Section 3(a) above:
(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, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(ii) During the period starting with the date sixty (60) days prior to the Company's estimated date of filing of, and ending on one hundred twenty (120) days immediately following the effective date of, any registration statement pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing in good faith all reasonable effects to cause such registration statement to become effective;
(iii) After the Company has effected one (1) such registration pursuant to Section 3(a), and such registrations have been declared or ordered effective;
(iv) If the Company shall furnish to such Holders a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement under to be filed in the Securities Act near future, then the Company's obligation to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all its commercially reasonable efforts to cause comply under Section 3(a) shall be deferred for a period not to exceed one hundred eighty (180) days from the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingdate of receipt of written request from an Initiating Holder; provided, however, provided that the Company need effect only two may not exercise this deferral right more than once per twelve (212) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationmonth period.
(c) A registration will requested pursuant to Section 3(a) shall not count as be deemed to have been effected (i) unless a Demand Registration until it registration statement with respect thereto has become been declared effective by the Commission, (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, ii) if after it has become effective, an offering of Registrable Securities pursuant to a such registration is interfered with by any stop order, injunction or other the order or requirement of the SEC Commission or other governmental agency or courtcourt for any reason, and, as a result thereof, the Transfer Restricted Notes covered thereby have not been sold or (iii) the registration statement does not remain effective for a period expiring the earlier of 90 days after the effective date thereof or the completion of the distribution of the Transfer Restricted Notes included in such registration will statement. The Holders of the Transfer Restricted Notes shall be deemed not permitted to have been effected and will not count as withdraw all or any part of the Transfer Restricted Notes from a Demand Registration at any time prior to the effective date of such Demand Registration; provided that in the event of, and concurrently with such withdrawal, the Holders responsible for such Demand Registration shall either (i) pay or reimburse the Company for all fees and expenses (including counsel fees and expense) incurred by them and the Company prior to such withdrawal or (ii) agree to forfeit its Demand Registration rights hereunder.
(d) Requesting Holders can request In the event that a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a3(a) unless is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the notice given pursuant to Section 3(a). In such Person (ievent, the right of any Holder to registration pursuant to Section 3(a) agrees to sell shall be conditioned upon such Person’s Registrable Securities on Holder's participation in 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 Securities 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 Securitiesby this Section 3, and the liability inclusion of each such Person will be Holder's Transfer Restricted Notes in proportion thereto, and provided, further, that such liability will the underwriting to the extent requested shall be limited to the net amount received extent provided herein. The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by such Person from the sale of his or its Registrable Securities pursuant Initiating Holder, but subject to such registrationthe Company's reasonable approval.
(e) No securities to be sold for If the account of Company includes in any Person (including the Company) other than a Requesting Holder shall be included in a underwritten Demand Registration to the extent that any securities which are not Transfer Restricted Notes and the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that in their opinion the inclusion number of such securities will materially and adversely affect the price or success of the 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 Securities Transfer Restricted Notes proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal exceeds the number of shares Transfer Restricted Notes and other securities which the Company is so advised can be sold in such offering without a Material Adverse Effect and offering, the Company will include in such shares shall registration (i) first, the Transfer Restricted Notes requested to be allocated pro rata among included which, in the Requesting opinion of such underwriters, can be sold, by the Initiating Holders on initiating the basis of Demand Registration, (ii) second, the number of Registrable Securities requested Transfer Restricted Notes proposed to be included in such registration by each the Other Holders exercising their registration rights hereunder, pro rata based upon the total number of Transfer Restricted Notes which such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 Other Holders propose to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with registration and (iii) third, the preceding sentence shall be deemed securities proposed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 included in such registration statement (but would not be required if such registration statement were not filed), and the Board determines in good faith that such disclosure would be materially detrimental to by any other holders as determined by the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceunderwriters.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestThe Holders of 50% or more of the then existing Registrable Shares shall have the right, by written notice (the "Demand Notice") given to the Company so long as this Agreement has not been terminated in accordance with Section 9.1 hereof, to request that the Company register under and in accordance with the provisions of the Securities Act all or part of the Registrable Shares designated by such holders. The Demand Notice shall specify shall specify the amount of Registrable Shares to be registered and the intended methods of disposition thereof. The Holders shall be entitled in the aggregate to one Demand Registration pursuant to this Section 2 unless a Demand Registration did not become effective or was not maintained effective for a period 4 (whether or not continuous) of at least 120 days or such shorter period at the end of which all Registrable Shares covered by such Demand Registration have been sold pursuant thereto, in writing which case the Holders will be entitled in the aggregate to one additional Demand Registration pursuant hereto for each instance in which the condition set forth above had not been satisfied.
(b) The Company shall file with, and shall use reasonable best efforts to cause to be declared effective by, the SEC within 90 days of the date on which the Company first receives the Demand Notice given by the Holders pursuant to Section 2 hereof, a Registration Statement under the Securities Act relating to the number of Registrable Shares specified in such Demand Notice (a “"Demand Request”Registration"); provided, that the Company shall have the right for a reasonable period of time not in excess of 90 days (exercisable by delivery of reasonable notice to the Holders of Registrable Shares included in such Registration Statement) to delay the filing of such Registration Statement if, in the Company's good faith exercise of its reasonable business judgment, (i) such registration and offering would adversely affect or interfere with a pending bona fide corporate transaction involving, or any bona fide financing by, the Company, (ii) the Company is in possession of material information that it determines, if disclosed in a registration statement, would have a material adverse effect on the business or operations of the Company and would not otherwise be required under law to be publicly disclosed or (iii) the Company is engaged in a program for the purchase of any shares of Company Common Stock, unless such repurchase program and the requested registration may proceed concurrently pursuant to an exemption from Rule 10b6 under the Securities Act Exchange Act; provided, that the Company may so delay the filing of such Registration Statement with respect to any one Demand Registration twice, but no more than twice, in any twelve-month period.
(c) The Company agrees to use reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2 continuously effective and usable for the resale of Registrable Shares for a period of 120 days from the date on which the SEC declares such Registration Statement effective or such shorter period which will terminate when all the Registrable Shares covered by such Registration Statement have been sold pursuant to such Registration Statement. The foregoing notwithstanding, the Company shall have the right to suspend the use of the Registration Statement for a reasonable length of time not exceeding with respect to any one Demand Registration an aggregate of 90 days (a "Delay Period") if and only if in the good faith exercise of the Company's reasonable business judgment (i) such use would adversely affect or interfere with a pending bona fide corporate transaction involving, or any bona fide financing by, the Company, (ii) the Company is in possession of material information that it determines, if disclosed in a registration statement, would have a material adverse effect on the business or operations of the Company and would not 5 otherwise be required under law to be publicly disclosed or (iii) the Company is engaged in a program for the purchase of any shares of Company Common Stock, unless such repurchase program and the requested registration may proceed concurrently pursuant to an exemption from Rule 10b6 under the Exchange Act; provided, that the Company may so suspend sales with respect to any one Demand Registration twice, but no more than twice, in any twelve month period. The Company shall provide written notice to the Holders of the beginning and end of each Delay Period and the Holders shall cease all disposition efforts with respect to Registrable Shares held by them immediately upon receipt of notice of the beginning of any Delay Period. The period for which the Company is required to maintain the effectiveness of the Registration Statement shall be extended by the aggregate number of days of all or part Delay Periods. Such period, including the extension thereof required by the preceding sentence, is hereafter referred to as the "Effectiveness Period."
(d) In the case of its or their Registrable Securities (a “proposed offering pursuant to a Demand Registration”), the Company may, in its sole discretion, include shares of Company Common Stock in such Demand Registration (whether for the account of the Company or otherwise, including without limitation shares of Company Common Stock held by security holders, if any, who have piggyback registration rights with respect thereto) on the same terms and conditions as the Registrable Shares. Notwithstanding the foregoing, no Demand Request will be effective hereunder unless if the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representCompany or, in the aggregate, more than 35% case of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten public offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders participating in writing such offering conclude that the inclusion of such securities will materially and adversely affect the price or success of the 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 total amount of Registrable Securities proposed shares of Company Common Stock requested to be included in such Demand Registration exceeds the amount which can be sold without materially and adversely delaying or affecting the success of the offering, then the amount of securities to be offered for the account of all holders other than the Company and the Holders shall be reduced (to zero if necessary) pro rata on the basis of the number of shares of Company Common Stock requested to be registered by Requesting Holders is sufficiently large to cause a Material Adverse Effecteach such Holder. If, after such cut back, the Registrable Securities Company or such underwriter concludes that the total amount of the Requesting Holders securities to be included in such Demand Registration shall equal still materially and adversely affects the number success of shares which such offering, then the amount of securities to be offered for the account of 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 reduced (to zero if necessary).
(e) If at any time the Requesting Holders on the basis of two-thirds of the number of Registrable Securities Shares which were requested to be included in such registration by each such Requesting Holder.
(fpursuant to Section 2(a) Upon receipt of any Demand Requestshall, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt Company, request the Registration Statement not be declared effective or otherwise request a termination or withdrawal of the Company’s noticeRegistration Statement, to elect to include and no Shares included in such Demand Registration Statement have been sold pursuant thereto, then provided such portion requesting Holders reimburse the Company for its out of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included picket costs incurred in a Demand Registration in accordance connection with complying with the preceding sentence shall be deemed request to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 register such registration statement (but would not be required if such registration statement were not filed), and the Board 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g)Shares, the Company shall promptly (but in any event within ten days), upon determining to seek terminate 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 4.01(g) registration statement 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 Securities 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 's obligation under paragraph 2(a) shall be deemed not continue as though such request to have been made for all purposes of this Agreement. The Company may defer the filing of file a particular registration statement pursuant to this Section 4.01(g) only once.Registration Statement
Appears in 1 contract
Sources: Registration Rights Agreement (Paracelsus Healthcare Corp)
Demand Registration. (a) Any Investor may requestCommencing one hundred and eighty (180) days after the Company completes the Share Exchange, in writing the holders of Registrable Securities constituting at least twenty-five percent (25%) of the total Registrable Securities then outstanding may, by written notice (collectively, a “Demand RequestNotice”), require that the Company effect the registration register, or cause Laser to register, under the Securities Act of all or part any portion of its or their Registrable Securities (a “Demand Registration”). Notwithstanding in the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting manner specified in the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant Notice, so long as such registration covers sales having an anticipated offering price, net of underwriting discounts and commissions, equal to Section 4.01(f) hereof) represent, in the aggregate, or more than 35% of the total number of Registrable Securities held by all Holders$10,000,000.
(b) Each Within 10 days of receipt of any Demand Request Notice under Section 2(a) above, the Company shall specify give written notice (a “Company Notice”) to all holders of Registrable Securities from whom a Demand Notice has not been received. Thereafter, the Company shall use its best efforts to register under the Securities Act, in accordance with the method of disposition specified in the Demand Notice, the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), specified in the Demand Notice (and in all notices received by the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event from other holders within 90 twenty (20) days after receiving a Demand Request (the “Required Filing Date”) and giving of such Company Notice). The Company shall use all commercially reasonable efforts be obligated to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of register Registrable Securities pursuant to Section 4.01(a)2(a) on two occasions only and no more than one such demand registration in any one hundred eighty (180) day period; provided, further, provided that if any such obligation shall be deemed satisfied only when a registration statement covering all Registrable Securities requested to be registered specified in notices received as aforesaid, for sale in accordance with the method of disposition specified in the Demand Notice, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such Registrable Securities shall have been sold pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) belowthereto. In addition, the Holders Company shall have the rightright to delay the filing of a registration statement pursuant to this Section 2 for one period not to exceed 120 days in any twelve (12) month period if the Board of Directors of the Company shall have determined in good faith, with respect that to each so file the registration statement would be reasonably detrimental to the Company, and an executive officer of the Company has delivered to the holder(s) a certificate to such exclusion, to request one additional Demand Registrationeffect.
(c) A If a demand registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities is an underwritten public offering 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 Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 their opinion the number of Registrable Securities requested to be included in such offering exceeds the number of shares which can be sold in an orderly manner in such offering within a price range acceptable to the requiring holders without adversely affecting the marketability of the offering, then the number of shares of Registrable Securities to be included in such registration shall be subject to cutback, and the Company will include in such demand registration (i) first, the Registrable Securities of the Tier I Shareholders pro rata among them, (ii) second, the Registrable Securities of the Tier II Shareholders pro rata among them, (iii) third, the Registrable Securities of the Tier III Shareholders pro rata among them, and (iv) fourth, other securities requested to be included in such registration, pro rata from among the other shareholders of the Company who have registration rights, in each case according to the number of such securities requested by each such Requesting Holderthem to be so included.
(fd) Upon receipt If a demand registration is not an underwritten public offering and the Board of any Demand Request, Directors of the Company shall promptly (but have determined in any event within 10 days) give written notice good faith that to file a registration statement covering the number of shares of Registrable Securities requested to be included in such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice registration would be reasonably detrimental to the Company within 20 days Company, then the number of their receipt shares of Registrable Securities to be included in such registration shall be subject to cutback by the Company’s notice, to elect to include in such Demand Registration such portion provided that the number of their Registrable Securities as they may request. All Holders requesting to have their shares of Registrable Securities included in a Demand Registration such demand registration shall not in accordance with the preceding sentence shall any case be deemed reduced to be “Requesting Holders” for purposes of this Section 4.01(f).
less than ten percent (g) The Company may defer the filing (but not the preparation10%) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date total number of shares of capital stock of the Company outstanding at such time, and the Company will include in such demand registration statement contemplated by clause (i) first, the Registrable Securities of the Tier I Shareholders pro rata among them, (ii) below) if (i) at the time the Company receives the Demand Requestsecond, the Company or any Registrable Securities of its Subsidiaries are engaged in confidential negotiations or the Tier II Shareholders pro rata among them, (iii) third, the Registrable Securities of the Tier III Shareholders pro rata among them, and (iv) fourth, other confidential business activities, disclosure of which would securities requested to be required included in such registration statement (but would not be required if such registration statement were not filed)registration, and pro rata from among the Board 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 shareholders of the Company stating that the Company is deferring such filing pursuant to this Section 4.01(g) and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificatewho have registration rights, the holders of a majority of the Registrable Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice in each case according to the Company; if withdrawn, the Demand Request shall number of such securities requested by them to be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceso included.
Appears in 1 contract
Sources: Registration Rights Agreement (Laser Recording Systems Inc)
Demand Registration. (a) Any Investor The Shareholder may request, in writing (a “Demand Request”), that the Company effect the registration request Compass to register under the Securities Act of 1933, as amended (the "Securities Act"), all or part a portion of its or their Registrable Securities the Shares held by such Shareholder for sale in a non- underwritten public offering (a “"Demand Registration”"). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total The number of Registrable Securities held by all Holdersoccasions on which Compass is obligated to register Shares hereunder is only one occasion.
(b) Each Demand Request Promptly following receipt of any notice under this Section 1.1, Compass shall specify use its best efforts to register under the number Securities Act, for public sale in a continuous or "shelf" registration made pursuant to Rule 415 promulgated under the Securities Act, or any similar or successor rule and under the securities laws of Registrable Securities proposed any state or other jurisdiction as may be reasonably required by the Shareholder, the Shares specified in such notice from the Shareholder. The registration statement shall permit sales of the Shares by the Shareholder to be sold. Subject effected continuously in one or more transactions on the NASDAQ National Market System or any stock exchange on which Compass Common Stock may hereafter be admitted for trading (collectively, "Exchanges") pursuant to Section 4.01(gand in accordance with the applicable rules of the Exchanges, in block transactions on the Exchanges pursuant to and in accordance with the applicable rules of the Exchanges, otherwise than on the Exchanges, in negotiated transactions (which may include the pledge or hypothecation of some or all of the Shares), or in a combination of any such methods of sale, at market prices prevailing at the Company time of sale, at prices related to such prevailing market prices or at negotiated prices. Compass shall file a not be required to maintain the effectiveness of any registration statement pursuant to this Agreement beyond the earlier to occur of (i) two years from the date hereof, and (ii) such lesser period of time if the Shareholder could sell his shares pursuant to any amendment to Rule 144 promulgated under the Securities Act to effect (the Demand Registration as promptly as possible and "Termination Date"). Without in any event within 90 days after receiving a Demand Request (way limiting the “Required Filing Date”) and shall use all commercially reasonable efforts obligation of Compass to cause the same to be declared keep effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction statement or other order state registration or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities to be registered qualification in a Demand Registration once it is effective or once such qualification has been obtained, Compass shall select the investment banking firm or firms be obligated to manage the underwritten offering, register Shares pursuant to this Section 1.1 on one occasion only; 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 request may be reasonably requested; provided, further, however, that the obligation made (a) for a period of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date completion of a distribution of Compass Common Stock pursuant to a firm commitment underwritten public offering, or (or, if longer, 90 days b) after the effective date of Termination Date. Notwithstanding anything to the registration statement contemplated by clause (ii) below) if (i) at the time the Company receives the Demand Requestcontrary contained herein, 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 Compass shall not be required if such registration statement were not filed), obligated to prepare and the Board 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 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 file any registration statement pursuant to this Section 4.01(g) shall be lifted1.1, or prepare or file any amendment or supplement thereto, and may suspend the requested Shareholder's rights to make sales of Shares pursuant to an effective registration statement shall only if either the registration statement or the prospectus is required to be filed forthwith, if, in amended or supplemented as the case result 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 preceding sentence, the proposed registration for the Company’s account is abandonedmaterial event. In order to defer the The filing of a registration statement, or any amendment or supplement thereto, by Compass cannot be deferred, and the Shareholder's rights to make sales pursuant to an effective registration statement cannot be suspended, pursuant to the provisions of the immediately preceding sentence for more than 60 days after the abandonment or consummation of any of the foregoing proposals or transactions or, in any event, for more than 120 days after the date of Compass' determination pursuant to the immediately preceding sentence of this Section 1.1(b).
(c) Compass shall be entitled to include in any registration statement filed pursuant to this Section 4.01(g), 1.1 shares of Compass Common Stock (or any securities convertible into or exchangeable for or exercisable for the Company shall promptly (but in any event within ten days), upon determining purchase of Compass Common Stock to seek such deferral, deliver to each Requesting Holder a certificate signed be sold by an executive officer or for the account of the Company stating that the Company is deferring such filing pursuant to this Section 4.01(g) and a general statement other shareholders 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceCompass.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestIf, in writing at any time after the earlier of 180 days after the consummation of the Company's First Public Offering and the Applicable Holdback Period, the Company shall receive a written request from either (x) both Institutional Shareholders or after the first anniversary of the consummation of the First Public Offering, either Institutional Shareholder (an "INSTITUTIONAL DEMAND") or (y) either of the Institutional Shareholders and Japan Energy (a “Demand Request”), "JOINT DEMAND") that the Company effect the registration under the Securities Act of all or part a portion of its or their such Requesting Shareholder's Registrable Securities (a “Demand Registration”). Notwithstanding Securities, and specifying the foregoingintended method of disposition thereof, no Demand Request will be effective hereunder unless then the proposed Registrable Securities Company shall promptly give written notice of such requested registration at least 15 days prior to be sold by the Holders requesting anticipated filing date of the registration statement relating to such Demand Registration (to each Non-Requesting Shareholder. In addition, if at any one time after the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% first anniversary of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)Company's First Public Offering, the Company shall file receive a written request from Japan Energy (a "JAPAN ENERGY DEMAND") that the Company effect the registration statement under the Securities Act of all or a portion of Japan Energy's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration at least 15 days prior to effect the anticipated filing date of the registration statement relating to such Demand Registration as promptly as possible and in any event within 90 days after receiving to each Non-Requesting Shareholder. Upon the Company's giving notice of a Demand Request (requested registration, the “Required Filing Date”) and shall Company will use all commercially reasonable its best efforts to cause effect, as expeditiously as possible, the same to be declared effective by registration under the SEC Securities Act of:
(or, if eligible, to become automatically effectivei) as promptly as practicable after such filing; provided, however, the Registrable Securities that the Company need effect only two has been so requested to register by the Requesting Shareholders, then held by the Requesting Shareholders, and
(2ii) Demand Registrations pursuant subject to Demand Requests made by Holders of the restrictions set forth in Section 5.02, all other Registrable Securities pursuant to Section 4.01(a); provided, further, of the same class as that if any Registrable Securities requested to be registered pursuant by the Requesting Shareholders which any Non-Requesting Shareholder entitled to a Demand Request are excluded from request the applicable Demand Company to effect an Incidental Registration pursuant to Section 4.01(e) below5.02 (all such Shareholders, together with the Requesting Shareholders, the "HOLDERS") have requested the Company to register by written request received by the Company within 15 days after the receipt by such Holders shall have of such written notice given by the rightCompany, all to the extent necessary to permit the disposition (in accordance with respect to each such exclusion, to request one additional Demand Registration.
(cthe intended methods thereof as aforesaid) A registration will not count as a Demand Registration until it has become effective (unless of the Requesting Holders withdraw all their Registrable Securities so to be registered, provided that any such Joint Demand occurring during the period between the First Public Offering and the first anniversary of the First Public Offering can occur only following the first Institutional Demand, and provided further that the Company has performed its obligations hereunder in all material respects, in which case such demand will count as shall not be obligated to effect a Demand Registration unless either (x) the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities aggregate proceeds expected 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed Common Shares requested to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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, exceed $25,000,000 or, in the case of a deferral pursuant to clause Shortform Registration, $5,000,000 or (iiy) the remaining portion of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the at least one Requesting Holders and for which registration was previously requested may withdraw Shareholder would be registered pursuant to such Demand Request by giving notice Registration. In no event will the Company be required to the Company; if withdrawn, the effect more than one Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceRegistration hereunder within any six-month period.
Appears in 1 contract
Demand Registration. At any time during the five year period following the Closing Date, the Investor, holding in the aggregate not less than (ai) Any Investor 25% of the aggregate Registrable Securities outstanding or (ii) Registrable Securities having a fair market value of at least $2 million, whichever is less, may request, in writing make a written request (a “Demand Request”), that the Company effect the "DEMAND NOTICE") for registration under the Securities Act of all or part of its or their Registrable Securities (a “"DEMAND REGISTRATION") of such Registrable Securities. The Demand Registration”). Notwithstanding the foregoing, no Demand Request Notice will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of shares of Registrable Securities proposed to be soldsold and will also specify the intended method of disposition thereof. Subject to Section 4.01(g)Following receipt of a Demand Notice from the Investor, the Company shall promptly will file a registration statement on any appropriate form which will cover the Registrable Securities that the Company has been so requested to register by the Investor. Unless the Investor shall consent in writing, no party (including the Company) other than a Pecuniary Owner, USAA Real Estate Company ("Realco"), MS Real Estate Special Situations Inc. ("MRSE") or certain clients of Morg▇▇ ▇▇▇n▇▇▇ ▇▇▇et Management Inc. who have purchased Common Shares of the Company (such clients together with MRSE, the "Purchasers") shall be permitted to offer securities under any such Demand Registration. The Company shall not be required to effect more than three Demand Registrations under this Section 2(b). A registration requested pursuant to this Section 2(b) will not be deemed to have been effected (and it shall not count as one of the three Demand Registrations) unless the Registration Statement relating thereto has become effective under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingAct; provided, howeverhowever that if, that after such Registration Statement has become effective, the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders offering of the Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected (and will it shall not count as a one of the three Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offeringRegistrations). If a Demand Registration is a “firm commitment” underwritten offeringThe Investor, the Requesting Holders holding in excess of a majority 50% of the Registrable Securities to be registered in covered by a Demand Registration may at any time prior to the effective date of the Registration Statement relating to such registration revoke a Demand Notice by providing a written notice to the Company (in which case such Demand Registration shall select not count as one of the investment banking firm three Demand Registrations). If the Investor, holding in the aggregate in excess of 50% of the Registrable Securities covered by the Demand Registration so elects, the offering of Registrable Securities pursuant to such registration shall be in the form of an Underwritten Offering. If the managing underwriter or firms underwriters of such offering advise the Company and the Investor in writing that in their opinion the number of shares of Registrable Securities and shares of Realco or the Purchasers, if any, requested to manage be included in such offering is sufficiently large to materially and adversely affect the underwritten success of such offering, provided that the Company will include in such selection shall registration the aggregate number of Registrable Securities and shares of Realco or the Purchasers, if any, requested to be subject to the consent of the Companyincluded, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 opinion of such underwriting arrangementsmanaging underwriter or underwriters can be sold without any such material adverse effect; 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 Securities to be transferred free and clear or shares of all liensRealco or the Purchasers, claims and encumbrancesif any, (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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities excluded before all shares proposed to be sold for the account of any Person (by other parties, including the Company) other than a Requesting Holder , have been excluded. If any Registrable Securities are excluded, such registration shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success not count as one of the offering (a “Material Adverse Effect”)three Demand Registrations. Furthermore, in the event the managing underwriter or underwriters shall advise the Company or the Requesting Holders that even after exclusion If more than 5% of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large registered hereunder are required to cause a Material Adverse Effectbe excluded pursuant to this paragraph, the number of Registrable Securities of the Requesting Holders Investor and the number of shares of Realco or each Purchaser, if any, 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 reduced pro rata among (according to the Requesting Holders on the basis of the total number of Registrable Securities requested or shares, as the case may be, beneficially 5 owned by each such holder), to the extent necessary to reduce the total amount necessary to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice Offering to the Company within 20 days of their receipt of the Company’s notice, amount recommended by such managing underwriter or underwriters. No registration pursuant to elect a request or requests referred to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence this subsection 2(b) shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f)a Shelf Registration.
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (American Industrial Properties Reit Inc)
Demand Registration. (a) Any Investor may requestFollowing the expiration of a one hundred eighty (180) day "stand still period" after the date hereof and then only if required to permit resales of the Registrable Shares by Holders, in writing (a “Demand Request”)Holders shall at any time and from time to time, that have the Company effect the right to require registration under the Securities Act of 1933, as amended ("Securities Act"), of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% any portion of the total number of Registrable Securities held by all HoldersShares on the terms and subject to the conditions set forth in this Agreement.
(b) Each Demand Request Upon receipt by GCI of a Holder's written request for registration, GCI shall specify (i) promptly notify each other Holder in writing of its receipt of such initial written request for registration, and (ii) as soon as is practicable, but in no event more than sixty (60) days after receipt of such written request, file with the number of Registrable Securities proposed to be sold. Subject to Section 4.01(gand Exchange Commission ("Commission"), the Company shall file and use its best efforts to cause to become effective, a registration statement under the Securities Act to effect ("Registration Statement") which shall cover the Demand Registration as promptly as possible Registrable Shares specified in the initial written request and any other written request from any other Holder received by GCI within twenty (20) days of GCI giving the notice specified in any event within 90 days after receiving a Demand Request clause (the “Required Filing Date”i) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationhereof.
(c) A registration will not count as If so requested by any Holder requesting participation in a Demand public offering or distribution of Registrable Shares pursuant to this Section 1 or Section 2 of this Agreement ("Selling Holder"), the Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an Statement shall provide for delayed or continuous offering of the Registrable Shares pursuant to Rule 415 promulgated under the Securities Act or any similar rule then in effect ("Shelf Offering"). If so requested by the Selling Holders, the public offering or distribution of Registrable Shares under this Agreement shall be pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offeringcommitment underwriting, the Requesting Holders managing underwriter of a majority of the Registrable Securities to which shall be registered in a Demand Registration shall select the an investment banking firm or firms to manage selected and engaged by the underwritten offering, provided that such selection shall be subject to the consent of the CompanySelling Holders and approved by GCI, which consent approval shall not be unreasonably withheld. No Person may participate GCI shall enter into the same underwriting agreement as shall the Selling Holders, containing representations, warranties and agreements not substantially different from those customarily made by an issuer in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements with respect to secondary distributions. GCI, as a condition to fulfilling its obligations under this Agreement, may require the underwriters to enter into an agreement in customary form indemnifying GCI against any Losses (as defined in Section 6) that arise out of or are based upon an untrue statement or an alleged untrue statement or omission or alleged omission in the Disclosure Documents (as defined in Section 6) made in reliance upon and other documents reasonably required under in conformity with written information furnished to GCI by the underwriters specifically for use in the preparation thereof.
(d) Each Selling Holder may, before such a Registration Statement becomes effective, withdraw its Registrable Shares from sale, should the terms of sale not be reasonably satisfactory to such underwriting arrangementsSelling Holder; providedif all Selling Holders who are participating in such registration so withdraw, however, that no such Person registration shall be required deemed to make have occurred for the purposes of Section 4 of this Agreement, unless such Selling Holders pay (pro rata, in proportion to the number of Registrable Shares requested to be included) within twenty (20) days after any representations or warranties such withdrawal, all of GCI's out-of-pocket expenses incurred in connection with any such registration other than representations and warranties as to (A) such Person’s ownership of his or its Registrable Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities Notwithstanding the foregoing, GCI shall not be obligated to be sold for the account of any Person (including the Company) other than effect a Requesting Holder shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 registration pursuant to this Section 1 during the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance period starting with the preceding sentence shall be deemed date sixty (60) days prior to be “Requesting Holders” for purposes GCI's estimated date of this Section 4.01(f).
filing of, and ending on a date six (g6) The Company may defer months following the filing (but not the preparation) of effective date of, a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental pertaining to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered an underwritten public offering of the Company’s Securities equity securities for the Company’s account and the Company had taken substantial steps (includingGCI's account, 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 4.01(g) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause provided that (i) GCI is actively employing in good faith all reasonable efforts to cause such registration statement to become effective and that GCI's estimate of the preceding sentencedate of filing on such registration statement is made in good faith, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause and (ii) of GCI shall furnish to the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), the Company shall promptly (but in any event within ten days), upon determining to seek such deferral, deliver to each Requesting Holder Holders a certificate signed by an executive officer of the Company GCI's President stating that in the Company is deferring Board of Directors' good-faith judgment, it would be seriously detrimental to GCI or its shareholders for a Registration Statement to be filed in the near future; and in such filing pursuant event, GCI's obligations to this Section 4.01(g) and file 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 Securities 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 Registration Statement shall be deemed deferred for a period not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(gexceed six (6) only oncemonths.
Appears in 1 contract
Sources: Stock Purchase Agreement (General Communication Inc)
Demand Registration. (a) Any Investor may request, in writing If the Company shall receive at any time after the Company's initial underwritten public offering of its Common Stock (so long as such request is not within 180 days after the effective date of a “Demand Request”), registration statement filed by the Company covering an underwritten offering of any of its securities to the general public) a written request from Developer that the Company effect the file a registration under the Securities Act of all or part of its or their statement registering Registrable Securities constituting at least twenty-five percent (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f25%) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by the Developer on the date hereof, then the Company will:
(i) promptly give written notice of the proposed registration to all Holders.other Holders holding Registrable Securities; and
(ii) as soon as practicable, use its best efforts to effect such registration, on Form S-3 or successor form replacing Form S-3, if practicable, (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and appropriate compliance with the Securities Act) as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request (as permitted hereunder) as are specified in a written request received by the Company within ten (10) business days after such written notice from the Company is mailed or delivered. Notwithstanding the foregoing provisions, the Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 3 if: ---------
(A) in any particular jurisdiction, 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);
(B) the Company has initiated one registration pursuant to Section 3.1(a) -------------- (counting for these purposes only (1) a registration which has been declared or ordered effective and pursuant to which securities have been sold and (2) a registration which has been withdrawn by the initiating Holders as to which the Holders have not paid the Registration Expenses pursuant to Section 3.3 hereof ----------- and were required to bear such expenses);
(C) such request for registration is made during the period starting with the date sixty (60) days prior to the Company's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a Company-initiated registration; provided that the Company -------- is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(gthe foregoing clauses (A) through (C), the Company shall file a registration statement under covering the Registrable Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same so requested to be declared effective by the SEC (or, if eligible, to become automatically effective) registered as promptly soon as practicable after such filingreceipt of the request of Developer (or its transferees), as the case may be; provided, however, that if (i) in the good -------- ------- faith judgment of the Board of Directors of the Company need effect only two (2) Demand Registrations pursuant the "Board of -------- Directors"), such registration would be seriously detrimental to Demand Requests made by Holders the Company and --------- the Board of Registrable Securities pursuant to Section 4.01(a); providedDirectors concludes, furtheras a result, that if any Registrable Securities requested it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors, it would be seriously detrimental to the Company for such registration statement to be registered pursuant filed in the near future and that it is, therefore, essential to a Demand Request are excluded from defer the applicable Demand Registration pursuant to Section 4.01(e) belowfiling of such registration statement, then the Holders Company shall have the rightright to defer such filing (except as provided in clause (C) above) for a period of not more than one hundred twenty (120) days after receipt of the request of the Developer (or its permitted Affiliate transferees), as the case may be, and, provided further, -------- ------- that the Company shall not defer its obligation in this manner more than once in any twelve-month period. The registration statement filed pursuant to the request of the Developer (or its transferees) may, subject to the provisions of Sections 3.1(d) and 3.9 --------------- --- hereof, include other securities of the Company, with respect to each such exclusionwhich registration rights have been granted, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and may include securities of 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 Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities to be being sold for the account of any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (ai) Any Investor At any time after six (6) months after the date of this Agreement, the Purchaser may request, in writing (a “Demand Request”), that the Company effect the request registration under the Securities Act of all or part any portion of its or their Registrable Securities on a Form S-3 registration statement (or any successor to such form) (or, if Form S-3 is not then available, on such form of registration statement as is then available to effect a registration of the Registrable Securities pursuant to this subsection (b)(1)) (each a “Demand Registration”). Notwithstanding , provided that, for the foregoing, no sake of clarity the Company shall not be required to effect a Demand Request will be effective hereunder unless the proposed Registration with respect to any Registrable Securities that are then subject to be sold by the Holders requesting lock-up agreement set forth in Section 5 of the Demand Registration Purchase Agreement (the “Requesting Holders,” which term Lock-up Agreement”). Each request for a Demand Registration shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in specify the aggregate, more than 35% of the total approximate number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed required to be soldregistered. Subject to Section 4.01(g)Upon receipt of a Demand Registration request, the Company shall file cause a Form S-3 registration statement under the Securities Act (or any successor to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”such form) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligibleForm S-3 is not then available, on such form of registration statement as is then available to become automatically effectiveeffect a registration of the Registrable Securities pursuant to this subsection (b)(1)) as promptly as practicable to be filed within forty-five (45) days after the date on which such filingrequest was received by the Company. The Company shall not be required to effect a Demand Registration more than two (2) times for the Purchaser; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders Statement shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration requested under this Section 2(b)(i) unless and until it has become effective and the Purchaser is able to register and sell at least seventy-five percent (unless 75%) of the Requesting Holders withdraw all their Registrable Securities and requested to be included in such registration.
(ii) If the Company has performed its obligations hereunder in all material respects, in which case such demand will count as Purchaser requests a Demand Registration unless and elects to distribute the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with covered by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can its request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” in an underwritten offering, the Requesting Holders Purchaser shall so advise the Company as a part of a majority of the Registrable Securities its request made pursuant to be registered in a Demand Registration Section 2(b)(i). The Company shall select the investment banking firm or firms to manage act as the underwritten managing underwriter or underwriters in connection with such offering; provided, provided however, that such selection shall be subject to the consent of the CompanyPurchaser, which consent shall not be unreasonably withheld. No Person may participate , delayed or conditioned.
(iii) The Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned. If a Demand Registration involves an underwritten offering and the managing underwriter of the requested Demand Registration advises the Company and the Purchaser in writing that, in its opinion, the number of shares of Common Stock proposed to be included in the Demand Registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such registration pursuant would adversely affect the price per share of the Registrable Securities proposed to Section 4.01(a) unless be sold in such Person underwritten offering, the Company shall include in such Demand Registration (i) agrees first, the number of shares of Common Stock that the Purchaser proposes to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above sell, and (ii) completes and executes all questionnairessecond, powers the number of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms shares 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 Securities Common Stock proposed to be transferred free and clear included therein by any other Persons (including shares 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities Common Stock to be sold for the account of any Person (including the CompanyCompany and/or other holders of Common Stock) other than a Requesting Holder shall be included allocated among such Persons in a Demand Registration to the extent that such manner as they may agree. If the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing determines that the inclusion of such securities will materially and adversely affect the price or success less than all of the 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 Securities proposed to be sold by the Purchaser can be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effectoffering, then the Registrable Securities of the Requesting Holders Purchaser to be included in such Demand Registration underwritten offer shall equal the number of shares securities which the Company Purchaser is so advised by the managing underwriter 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 Securities requested to be included in such registration by each such Requesting Holderoffering.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestUpon the written request of one or more record holders of Securities, in writing (a “Demand Request”), which request will state the intended method of disposition by such holders and will request that the Company effect the registration under the Securities Act of all or part of the Registerable Common Stock (as hereinafter defined) of such holders, the Company will, within 10 days after receipt of such request, give written notice of such requested registration to all registered holders of Securities and Series A Securities, and thereupon (except as expressly provided herein) will use its best efforts to effect the registration ("Demand Registration") under the Securities Act of (x) the shares of Registerable Common Stock included in the initial request for registration (for disposition in accordance with the intended method of disposition stated in such request) and (y) all other shares of Registerable Common Stock and shares of Series A Registerable Common Stock the holders of which have made written request to the Company for registration thereof within 30 days after the receipt of such written notice from the Company, provided that:
(a) the Company shall be required to effect only two Demand Registrations hereunder, each of which must be initially requested by the holders of record of at least a majority of the Securities outstanding at the time of the request; PROVIDED that the Company shall not be required to effect more than one registration during any one year period pursuant to this Section 7.1 or their Registrable paragraph 7(a) of the Series A Agreement (except that, upon request of any holder of Securities (regardless of the number of Securities held by such holder), the Company, if it is then qualified to do so, shall be required to effect up to four registrations on Form S-3, or a “Demand Registration”). Notwithstanding the foregoingsimilar short form registration statement, no Demand Request will which registrations (hereinafter referred to as "Short Form Registrations") shall not be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting counted for purposes of this Section 7.1(a) as the Demand Registration (which the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant Company is required to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.effect);
(b) if the holders of Registerable Common Stock who initiated the request for registration intend to sell their Registerable Common Stock by means of an underwriting (whether on a "best efforts" or a "firm commitment" basis), they shall so advise the Company as part of their request, and the Company shall include such information in the notice to the other holders of Securities and Series A Securities. In that event, the other holders of Securities and Series A Securities shall have the right to include their shares of Registerable Common Stock or Series A Registerable Common Stock in the underwriting (unless otherwise mutually agreed by a majority in interest of the holders of the Securities and Series A Securities). The managing underwriter for such offering shall be selected by the Board of Directors of the Company. Each such holder agrees, with respect to an underwritten public offering which occurs following the Closing Date, by its acquisition of Securities not to effect any public sale or distribution of such Securities or Registerable Common Stock (other than as part of such underwritten public offering) during such period, if any, not to exceed 120 days, as shall reasonably be requested by any underwriter;
(c) the Company shall not include and shall not permit third parties other than the holders of Series A Securities to include additional securities in a Demand Request shall specify Registration without the consent of the holders of a majority of the shares of Registerable Common Stock and Series A Registerable Common Stock included in such Demand Registration;
(d) if a Demand Registration under this Section 7.1 is in connection with an underwritten public offering, and if the managing underwriters advise the Company in writing that in their opinion the amount of Registerable Common Stock and Series A Registerable Common Stock requested to be included in such registration exceeds the amount of such Registerable Common Stock and Series A Registerable Common Stock which can be successfully sold in such offering, the Company will nevertheless include in such registration, prior to the inclusion of any securities which are not Registerable Common Stock or Series A Registerable Common Stock (notwithstanding any consent obtained in accordance with paragraph 7.1(c) hereof), the amount of Registerable Common Stock and Series A Registerable Common Stock requested to be included which in the opinion of such underwriters can be sold, pro rata among the holders of Registerable Common Stock and Series A Registerable Common Stock requesting inclusion on the basis of the number of shares of Registrable Securities proposed Common Stock and Series A Registerable Common Stock then owned by such holders; provided, however, that if the holders of Registerable Common Stock are unable to include in such offering at least fifty percent (50%) of the Registerable Common Stock sought to be sold. Subject registered in a Demand Registration under this Section 7.1, the holders of Securities will be entitled to an additional Demand Registration under this paragraph;
(e) if the Company shall furnish to the holders requesting a registration pursuant to this Section 4.01(g)7 a certificate signed by the President of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for a registration statement to be filed as requested, the Company shall file have the right to defer such filing for a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 period of not more than 120 days after receiving a Demand Request (receipt of the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filinginitial request for registration under this Section 7.1; provided, however, that the Company need may not utilize this right more than once in any one-year period;
(f) registrations under this Section 7.1 will be on a form permitted by the rules and regulations of the Commission selected by the underwriters if the Demand Registration is in connection with an underwritten public offering or otherwise by the Company; and
(g) notwithstanding anything else contained herein, the Company will not be required to effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to this Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (7.1 unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering aggregate number of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement shares of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities Common Stock 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 exceeds 20% of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers shares 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received Common Stock then held by such Person from the sale of his or its Registrable Securities 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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 the Securities or issuable to such holders upon conversion of the Registrable Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceShares.
Appears in 1 contract
Demand Registration. 2.1 Commencing one hundred and eighty (a180) Any Investor may requestdays after June 11, in writing 2004 (a “Demand Request”the date the Company completed the Share Exchange), the holders of Registrable Securities constituting at least twenty-five percent (25%) of the total Registrable Securities then outstanding may, by written notice (collectively, a "Demand Notice"), require that the Company effect the registration register under the Securities Act of all or part any portion of its or their Registrable Securities in the manner specified in the Demand Notice, so long as such registration covers sales having an anticipated offering price, net of underwriting discounts and commissions, equal to or more than $10,000,000.
2.2 Within 10 days of receipt of any Demand Notice under Section 2(a) above, the Company shall give written notice (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities "Company Notice") to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number all holders of Registrable Securities held by all Holders.
(b) Each from whom a Demand Request Notice has not been received. Thereafter, the Company shall specify use its best efforts to register under the Securities Act, in accordance with the method of disposition specified in the Demand Notice, the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), specified in the Demand Notice (and in all notices received by the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event from other holders within 90 twenty (20) days after receiving a Demand Request (the “Required Filing Date”) and giving of such Company Notice). The Company shall use all commercially reasonable efforts be obligated to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of register Registrable Securities pursuant to Section 4.01(a)2(a) on two occasions only and no more than one such demand registration in any one hundred eighty (180) day period; provided, further, provided that if any such obligation shall be deemed satisfied only when a registration statement covering all Registrable Securities requested to be registered specified in notices received as aforesaid, for sale in accordance with the method of disposition specified in the Demand Notice, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such Registrable Securities shall have been sold pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) belowthereto. In addition, the Holders Company shall have the rightright to delay the filing of a registration statement pursuant to this Section 2 for one period not to exceed 120 days in any twelve (12) month period if the Board of Directors of the Company shall have determined in good faith, with respect that to each such exclusionso file the registration statement would be reasonably detrimental to the Company, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and an executive officer of the Company has performed its obligations hereunder in all material respects, in which case delivered to the holder(s) a certificate to such effect.
2.3 If a demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” an underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, public offering and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 their opinion the number of Registrable Securities requested to be included in such offering exceeds the number of shares which can be sold in an orderly manner in such offering within a price range acceptable to the requiring holders without adversely affecting the marketability of the offering, then the number of shares of Registrable Securities to be included in such registration shall be subject to cutback, and the Company will include in such demand registration (i) first, the Registrable Securities of the Tier I Shareholders pro rata among them, (ii) second, the Registrable Securities of the Tier II Shareholders pro rata among them, (iii) third, the Registrable Securities of the Tier III Shareholders pro rata among them, and (iv) fourth, other securities requested to be included in such registration, pro rata from among the other shareholders of the Company who have registration rights, in each case according to the number of such securities requested by each such Requesting Holderthem to be so included.
(f) Upon receipt 2.4 If a demand registration is not an underwritten public offering and the Board of any Demand Request, Directors of the Company shall promptly (but have determined in any event within 10 days) give written notice good faith that to file a registration statement covering the number of shares of Registrable Securities requested to be included in such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice registration would be reasonably detrimental to the Company within 20 days Company, then the number of their receipt shares of Registrable Securities to be included in such registration shall be subject to cutback by the Company’s notice, to elect to include in such Demand Registration such portion provided that the number of their Registrable Securities as they may request. All Holders requesting to have their shares of Registrable Securities included in a Demand Registration such demand registration shall not in accordance with the preceding sentence shall any case be deemed reduced to be “Requesting Holders” for purposes of this Section 4.01(f).
less than ten percent (g) The Company may defer the filing (but not the preparation10%) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date total number of shares of capital stock of the Company outstanding at such time, and the Company will include in such demand registration statement contemplated by clause (i) first, the Registrable Securities of the Tier I Shareholders pro rata among them, (ii) below) if (i) at the time the Company receives the Demand Requestsecond, the Company or any Registrable Securities of its Subsidiaries are engaged in confidential negotiations or the Tier II Shareholders pro rata among them, (iii) third, the Registrable Securities of the Tier III Shareholders pro rata among them, and (iv) fourth, other confidential business activities, disclosure of which would securities requested to be required included in such registration statement (but would not be required if such registration statement were not filed)registration, and pro rata from among the Board 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 shareholders of the Company stating that the Company is deferring such filing pursuant to this Section 4.01(g) and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificatewho have registration rights, the holders of a majority of the Registrable Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice in each case according to the Company; if withdrawn, the Demand Request shall number of such securities requested by them to be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceso included.
Appears in 1 contract
Sources: Registration Rights Agreement (Weida Communications, Inc.)
Demand Registration. (aa ) Any Investor may requestThe Holders of 50% or more of the then existing Registrable Shares shall have the right, by written notice (the "Demand Notice") given to the Company so long as this Agreement has not been terminated in accordance with Section 9.1 hereof, to request that the Company register under and in accordance with the provisions of the Securities Act all or part of the Registrable Shares designated by such holders. The Demand Notice shall specify shall specify the amount of Registrable Shares to be registered and the intended methods of disposition thereof. The Holders shall be entitled in the aggregate to one Demand Registration pursuant to this Section 2 unless a Demand Registration did not become effective or was not maintained effective for a period 49 (whether or not continuous) of at least 120 days or such shorter period at the end of which all Registrable Shares covered by such Demand Registration have been sold pursuant thereto, in writing which case the Holders will be entitled in the aggregate to one additional Demand Registration pursuant hereto for each instance in which the condition set forth above had not been satisfied.
(b ) The Company shall file with, and shall use reasonable best efforts to cause to be declared effective by, the SEC within 90 days of the date on which the Company first receives the Demand Notice given by the Holders pursuant to Section 2 hereof, a Registration Statement under the Securities Act relating to the number of Registrable Shares specified in such Demand Notice (a “"Demand Request”Registration"); provided, that the Company shall have the right for a reasonable period of time not in excess of 90 days (exercisable by delivery of reasonable notice to the Holders of Registrable Shares included in such Registration Statement) to delay the filing of such Registration Statement if, in the Company's good faith exercise of its reasonable business judgment, (i) such registration and offering would adversely affect or interfere with a pending bona fide corporate transaction involving, or any bona fide financing by, the Company, (ii) the Company is in possession of material information that it determines, if disclosed in a registration statement, would have a material adverse effect on the business or operations of the Company and would not otherwise be required under law to be publicly disclosed or (iii) the Company is engaged in a program for the purchase of any shares of Company Common Stock, unless such repurchase program and the requested registration may proceed concurrently pursuant to an exemption from Rule 10b6 under the Securities Act Exchange Act; provided, that the Company may so delay the filing of such Registration Statement with respect to any one Demand Registration twice, but no more than twice, in any twelve-month period.
(c ) The Company agrees to use reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2 continuously effective and usable for the resale of Registrable Shares for a period of 120 days from the date on which the SEC declares such Registration Statement effective or such shorter period which will terminate when all the Registrable Shares covered by such Registration Statement have been sold pursuant to such Registration Statement. The foregoing notwithstanding, the Company shall have the right to suspend the use of the Registration Statement for a reasonable length of time not exceeding with respect to any one Demand Registration an aggregate of 90 days (a "Delay Period") if and only if in the good faith exercise of the Company's reasonable business judgment (i) such use would adversely affect or interfere with a pending bona fide corporate transaction involving, or any bona fide financing by, the Company, (ii) the Company is in possession of material information that it determines, if disclosed in a registration statement, would have a material adverse effect on the business or operations of the Company and would not 50 otherwise be required under law to be publicly disclosed or (iii) the Company is engaged in a program for the purchase of any shares of Company Common Stock, unless such repurchase program and the requested registration may proceed concurrently pursuant to an exemption from Rule 10b6 under the Exchange Act; provided, that the Company may so suspend sales with respect to any one Demand Registration twice, but no more than twice, in any twelvemonth period. The Company shall provide written notice to the Holders of the beginning and end of each Delay Period and the Holders shall cease all disposition efforts with respect to Registrable Shares held by them immediately upon receipt of notice of the beginning of any Delay Period. The period for which the Company is required to maintain the effectiveness of the Registration Statement shall be extended by the aggregate number of days of all or part Delay Periods. Such period, including the extension thereof required by the preceding sentence, is hereafter referred to as the "Effectiveness Period."
(d ) In the case of its or their Registrable Securities (a “proposed offering pursuant to a Demand Registration”), the Company may, in its sole discretion, include shares of Company Common Stock in such Demand Registration (whether for the account of the Company or otherwise, including without limitation shares of Company Common Stock held by security holders, if any, who have piggyback registration rights with respect thereto) on the same terms and conditions as the Registrable Shares. Notwithstanding the foregoing, no Demand Request will be effective hereunder unless if the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representCompany or, in the aggregate, more than 35% case of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten public offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders participating in writing such offering conclude that the inclusion of such securities will materially and adversely affect the price or success of the 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 total amount of Registrable Securities proposed shares of Company Common Stock requested to be included in such Demand Registration exceeds the amount which can be sold without materially and adversely delaying or affecting the success of the offering, then the amount of securities to be offered for the account of all holders other than the Company and the Holders shall be reduced (to zero if necessary) pro rata on the basis of the number of shares of Company Common Stock requested to be registered by Requesting Holders is sufficiently large to cause a Material Adverse Effecteach such Holder. If, after such cut back, the Registrable Securities Company or such underwriter concludes that the total amount of the Requesting Holders securities to be included in such Demand Registration shall equal still materially and adversely affects the number success of shares which such offering, then the amount of securities to be offered for the account of 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 reduced (to zero if necessary).
(e ) If at any time the Requesting Holders on the basis of two-thirds of the number of Registrable Securities Shares which were requested to be included in such registration by each such Requesting Holder.
(fpursuant to Section 2(a) Upon receipt of any Demand Requestshall, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt Company, request the Registration Statement not be declared effective or otherwise request a termination or withdrawal of the Company’s noticeRegistration Statement, to elect to include and no Shares included in such Demand Registration Statement have been sold pursuant thereto, then provided such portion requesting Holders reimburse the Company for its out of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included picket costs incurred in a Demand Registration in accordance connection with complying with the preceding sentence shall be deemed request to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 register such registration statement (but would not be required if such registration statement were not filed), and the Board 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g)Shares, the Company shall promptly (but in any event terminate such registration statement and the Company's obligation under paragraph 2(a) shall continue as though such request to file a Registration Statement thereunder shall not have been made; provided, that the holders may not give a Demand Notice within ten days), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer six months of the Company stating that date the Company is deferring terminates or withdraws such filing pursuant to this Section 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceRegistration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Paracelsus Healthcare Corp)
Demand Registration. 2.1. From and after the date ninety (a90) Any Investor days (or such later date as may request, in writing (a “Demand Request”), that be required by Section 9 hereof) after the Company effect the effective date of any registration under statement filed pursuant to the Securities Act for an underwritten initial public offering of all or part shares of its or their Registrable Securities Common Stock initiated by the Company, Holders (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities including persons deemed to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to the last sentence of this Section 4.01(f2.1) hereof) representowning, individually or in the aggregate, more than at least 35% of the total number of Registrable Securities held Common Stock issued and issuable to the Holders may from time to time make written requests for a Demand Registration, pursuant to a registration statement on a Form S-1 or Form S-2 (or any applicable substitute, replacement or successor form that may be adopted by all Holdersthe Commission) (collectively, a “Long Form”).
2.2. If at any time the Company is a registrant entitled to use a registration statement on Form S-3 (bor any applicable substitute, replacement or successor form that may be adopted by the Commission (collectively, a “Short Form”) Each to register Registrable Common Stock, Holders owning, individually or in the aggregate, at least 20% of the Registrable Common Stock issued and issuable to the Holders may make written requests for a Demand Request Registration, pursuant to a Short Form.
2.3. The request for a Demand Registration shall specify the number of shares of Registrable Securities Common Stock proposed to be soldsold and will also specify the intended method of disposition thereof. Subject In any request for a Demand Registration, the Holders may request that the Company effect a shelf registration, on any available Short Form, to permit sales of shares of Registrable Common Stock on a continuous basis, that is to remain continuously effective for a period of up to two (2) years.
2.4. Within five (5) days of its receipt of a registration notice under this Section 4.01(g)2, the Company shall file deliver a copy of the registration statement under notice to each Holder who is not a party to the Securities Act registration notice and each other Holder of Registrable Common Stock (the “Other Holders”), each of whom may then specify, by written notice to effect the Demand Registration Company as promptly soon as possible practicable, and in any event within 90 twenty (20) days after receiving of the receipt of such registration notice, a Demand Request (number of shares of Registrable Common Stock held by or issuable to it which it wishes to include in any registration pursuant to the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingregistration notice under this Section 2; provided, however, that each Other Holder shall be subject to the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders market cutback limitations of Section 8 hereof. Such request shall specify the number of shares of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested Common Stock proposed to be registered pursuant to a Demand Request are excluded from sold and the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationintended method of disposition thereof.
(c) A 2.5. Except as provided in the next paragraph, a registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count be deemed to have been effected as a Demand Registration unless (a) it has been declared effective by the Requesting Holders pay Commission and (b) the Company has complied in all Registration Expenses, as hereinafter defined, in connection material respects with such withdrawn registration)its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, an the offering of Registrable Securities Common Stock pursuant to a such registration is interfered with by or becomes the subject of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or courtadministrative agency, or if any court prevents or otherwise limits the sale of Registrable Common Stock pursuant to the registration (for any reason other than the acts or omissions of the Holders), such registration will be deemed not to have been effected effected. The Demanding Holders or any Other Holders may withdraw all or any part of the Registrable Common Stock from a Demand Registration at any time before the effective date of such Demand Registration, and if all such Registrable Common Stock is so withdrawn, the Demanding Holders may withdraw the demand related thereto. If at any time a registration statement is filed pursuant to a Demand Registration, and subsequently a sufficient number of shares of Registrable Common Stock are withdrawn from the Demand Registration so that such registration statement does not cover at least the required amounts specified by Sections 2.1 and 2.2 hereof, and an additional number of shares of Registrable Common Stock is not so included, the Company may (or shall, if requested by the Demanding Holders) withdraw the registration statement. Any Demand Registration that is withdrawn pursuant to the preceding two sentences after the initial filing with the Commission shall count as a Demand Registration hereunder, unless the Holders elect to bear the expenses of such Demand Registration as contemplated in the next sentence. If the Demanding Holders elect to bear the expenses associated with any such withdrawn registration statement which would otherwise have counted as a Demand Registration hereunder, such registration statement will not count as a Demand Registration.
(d) Requesting Holders can Registration and the Company shall continue to be obligated to effect a registration pursuant to this Section 2 as though the initial request a “firm commitment” underwritten offeringfor such Demand Registration had never been made. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person Demanding Holders (i) agrees to sell such Person’s Registrable Securities based 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities Common Stock originally requested to be included in such registration by each such Requesting Holder.
(fincluded) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 bear such Demand Registration expenses, such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence expenses shall be deemed to be “Requesting Holders” for purposes borne by the Demanding Holder(s) whose withdrawal of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 Registrable Common Stock resulted in such registration statement (but would not be covering the specified required if such registration statement were not filed), and the Board 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceamounts.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time after December 31, in writing (a “Demand Request”)1999 and subject to Section 2.5 of the Stockholder Agreement, if the Purchaser holds at least 500,000 shares of Registrable Securities, the Purchaser shall have the right to request that the Company effect prepare, and file with the SEC a Registration Statement on Form S-3 covering the resale of all or any portion of the then issued Registrable Securities (a "Demand Registration"). The Registration Statement shall have a minimum aggregate offering price (as set forth on the facing page of the Registration Statement) to the public of $10,000,000. The Purchaser may demand that any Registration Statement be a shelf-registration in accordance with Rule 415 under the Securities Act or any successor rule providing for offering securities on a continuous basis ("Rule 415"). The Company shall send to all other Purchasers, if any, written notice of such request and if any such Purchasers respond within fifteen (15) days after the effective date of such notice (in accordance with Section 2.6 below), the Company shall include all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities requested by any such Purchaser to be sold by the Holders requesting registered in the Demand Registration in accordance with this Section 2.
1. The Registration Statement (and each amendment or material supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the “Requesting Holders,” approval of (which term approval shall include parties deemed “Requesting Holders” pursuant not be unreasonably withheld or denied)) the Purchaser and its counsel prior to Section 4.01(f) hereof) representits filing. After receiving the Registration Statement, in the aggregate, more than 35% Purchaser shall provide the Company with either its approval of the total number Registration Statement or its comments or corrections to the Registration Statement within five (5) business days of Registrable Securities held by all Holders.
(b) Each Demand Request receipt of the draft Registration Statement. If the Purchaser does not respond with approval or comments within five business days, it shall specify be deemed to approve the number of Registrable Securities proposed Registration Statement. Without limiting the Company's obligations under this Section, if Form S-3 is not available to be sold. Subject to Section 4.01(g)the Company in connection with re-sales, the Company shall file a registration statement under the Securities Act Registration Statement on such form as is then available to effect a registration, subject to the Demand consent of the Purchaser (as determined pursuant to Section 11.10 hereof) as to the form used for such filing. The Purchaser shall have the right to request the filing of one Registration as promptly as possible and Statement under this Section 2.1 in any event within 90 days after receiving a Demand Request twelve (the “Required Filing Date”12) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingmonth period; provided, however, that if the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 Purchaser requests the filing of more than one Registration Statement in a registration statement pursuant to this Section 4.01(g) twelve month period then the Purchaser 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made pay for all purposes expenses of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncesuch Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Softnet Systems Inc)
Demand Registration. (i) If, by November 15, 2000, the Purchaser shall not have filed a registration statement or registration statements which, in the aggregate, include all of the Registrable Securities (other than the Purchaser Escrow Shares which, at that date, are still being held in escrow under the Agreement), whether pursuant to paragraph (a) Any Investor may requestor paragraph (b) of this Section 2, then by December 31, 2000, the Purchaser shall file a registration statement with the SEC with respect to those Registrable Securities owned by the Sellers which have not theretofore been included in a registration statement filed under the Securities Act.
(ii) At any time after December 31, 2000, if the Purchaser shall not have filed a registration statement or registration statements which, in writing the aggregate, include all of the the Registrable Securities (a “Demand Request”other than the Purchaser Escrow Shares which, at that date, are still being held in escrow under the Agreement), whether pursuant to paragraph (a), paragraph (b) or paragraph (c)(i) of this Section 2, upon the written request of Holders of a majority in interest of the Registrable Securities then outstanding and entitled to registration rights under this Section 2 (the "Initiating Holders") that the Company Purchaser effect the registration under the Securities Act of all or part of its or their the Registrable Securities (then outstanding, the Purchaser shall, within 45 days of the receipt of such request, file with the SEC a “Demand Registration”). Notwithstanding registration statement covering all the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities and use its commercially reasonable best efforts to have such registration statement be sold declared effective. The exercise by the Holders requesting of the Demand Registration registration rights set forth in this Section 2(c) is subject to the Initiating Holders= compliance with the terms and restrictions set forth in this Agreement.
(iii) If the “Requesting Holders,” which term Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall include parties deemed “Requesting Holders” so advise the Purchaser as part of their request made pursuant to Section 4.01(f2(c)(ii). All Holders proposing to distribute their securities through such underwriting shall (together with the Purchaser) hereof) represent, enter into an underwriting agreement in customary form with the aggregate, more than 35% underwriter or underwriters selected for such underwriting by a majority in interest of the total number Initiating Holders. In the case of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise be selected, after consultation with, and with the Company or consent of, the Requesting Holders Purchaser (which shall not unreasonably be withheld), by a majority in writing that the inclusion of such securities will materially and adversely affect the price or success interest of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting HolderInitiating Holders.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Subject to the conditions of this Section 2.1, if at any time the Company shall receive a written request from an Investor may request, in writing or group of Investors that the Company register under the Securities Act at least 3,333,333 Shares (a “Demand RequestDemanding Investor”), that ) then the Company effect shall, subject to the limitations of this Section 2.1, effect, as promptly as reasonably practicable, the registration under the Securities Act of all or part of its or their Registrable Securities (that the Investor requests to be registered. Any such requested registration shall hereinafter be referred to as a “Demand Registration”). Notwithstanding ” and any such registration statement filed with the foregoing, no Demand Request will SEC shall be effective hereunder unless the proposed Registrable Securities referred to be sold by the Holders requesting the as a “Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all HoldersStatement.”
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file If a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effectivedemanding Investor so elects, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement Demand Registration shall be in the form of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” an underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, Such demanding Investor shall have the Requesting Holders of a majority of the Registrable Securities right 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise to administer the Company or the Requesting Holders in writing that the inclusion of offering; provided such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). Furthermore, in the event the managing underwriter or underwriters shall advise be reasonably acceptable to the Company.
(c) The Company or shall not be required to effect a registration pursuant to this Section 2.1: (i) prior to such time that any of the Requesting Holders that even after exclusion of all securities of other Persons Securities shall have converted into Common Shares pursuant to the immediately preceding sentenceterms of the Securities; (ii) after the Company has effected four (4) registrations pursuant to this Section 2.1, and each of such registrations has been declared or ordered effective and kept effective by the amount Company as required by Section 2.4(a) of this Agreement; (iii) with respect to a registration of Registrable Securities proposed during the period starting with the date thirty (30) days prior to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities Company’s good faith estimate of the Requesting Holders to be included in such Demand Registration shall equal launch date of, and ending on a date ninety (90) days after the number closing date of, a Company-initiated registered offering of shares which equity securities or securities convertible into or exchangeable for equity securities; provided that the Company is so advised can be sold actively employing in good faith all commercially reasonable efforts to launch 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 Securities requested to be included in such registration by each such Requesting Holder.
registered offering; (fiv) Upon receipt of during any Demand Request, Scheduled Black-out Period; (v) if the Company shall promptly (but has notified the Investor that in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt good faith judgment of the Company’s notice, to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 determines in good faith that such disclosure it would be materially detrimental to the Company or its securityholders for such registration to be effected at such time or (vi) if the filing or initial effectiveness of a Demand Registration Statement at any time would require the Company to make disclosure of any event that the Board of Directors of the Company determines would not be in the best interests of the Company and its stockholders shareholders due to a pending transaction, investigation or (ii) prior to receiving the Demand Requestother event, the Board had determined to effect a registered underwritten including any public offering disclosure of the Company’s Securities for the Company’s account and material non-public information, where such disclosure would, at that time, materially adversely affect the Company had taken substantial steps and its shareholders, in which events described above in clauses (includingiii), but not limited to, selecting a managing underwriter for such offering(iv) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(gv), the Company shall promptly (but in any event within ten days), upon determining have the right 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 defer such filing pursuant to this Section 4.01(g) and for a general statement period 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.more than ninety
Appears in 1 contract
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)Following an Initial Public Offering, the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause qualify for Registration on Form S-3 for secondary sales. After the same Company has qualified for the use of Form S-3, Investors holding a majority of the outstanding Registrable Securities then held by all Investors shall have the right to request not more than three (3) Registrations on Form S-3 with respect to all or a part of the Registrable Securities held by all the Investors (all such requests shall be in writing and shall state the number of shares of Registrable Securities to be declared effective disposed of and the intended method of disposition of shares by the SEC Investors), provided that the Company shall not be obligated to effect, or take any action to effect, any such Registration pursuant to this Section 2(b):
(i) Unless the Investors propose to dispose of shares of Registrable Securities having an aggregate price to the public (before deduction of underwriting discounts and expenses of sale) of more than $5,000,000;
(ii) Within 180 days of the effective date of the most recent Registration pursuant to this Section 2(b) in which securities held by the Investors could have been included for sale or distribution; or
(iii) During the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of filing of, if eligibleand ending on the date ninety (90) days immediately following the effective date of, any registration statement pertaining to securities of the Company (other than a Registration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect may only two (2) Demand Registrations delay an offering pursuant to Demand Requests this Section 2(b)(iii) for a period of not more than sixty (60) days, if a filing of any other registration statement is not made by Holders within that period and the Company may only exercise this right once in any twelve (12) month period. The Company shall give written notice to all Other Stockholders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to the receipt of a Demand Request are excluded from the applicable Demand request for Registration pursuant to this Section 4.01(e2(b) belowand shall provide a reasonable opportunity for such Other Stockholders to participate in the Registration, provided that if the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” for an underwritten offering, the Requesting Holders terms of a majority of the Registrable Securities Section 2(a)(ii) shall apply to be registered all participants in a Demand Registration shall select the investment banking firm or firms to manage the underwritten such offering, provided that such selection shall be subject . Subject to the consent foregoing, the Company will use all commercially reasonable efforts to effect promptly the Registration of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s all shares of Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 Form S-3 to the extent that requested by the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” holders thereof for purposes of this Section 4.01(f)disposition.
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (Old Glory Holding Co)
Demand Registration. (a) Any At any time during the five year period following the Closing Date, the Investor may request, in writing make a written request (a “the "Demand Request”), that the Company effect the Notice") for registration under the Securities Act of all or part (a "Demand Registration") of its or their Registrable Securities (a “Securities. The Demand Registration”). Notwithstanding the foregoing, no Demand Request Notice will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of shares of Registrable Securities proposed to be soldsold and will also specify the intended method of disposition thereof. Subject to Section 4.01(g)Following receipt of a Demand Notice from the Investor, the Company shall promptly will file a registration statement on any appropriate form which will cover the Registrable Securities that the Company has been so requested to register by the Investor. Unless the Investor shall consent in writing, no party (including the Company) other than DDR, Praedium II Industrial Associates LLC ("Praedium"), MS Real Estate Special Situations Inc. ("MRSE"), certain clients of Morg▇▇ ▇▇▇n▇▇▇ ▇▇▇et Management Inc. who have purchased Common Shares of the Company (such clients together with MRSE, the "Morg▇▇ ▇▇▇ities"), LaSalle Advisors Limited Partnership acting as agent for and on behalf of certain clients ("LaSalle"), or ABKB/LaSalle Securities Limited Partnership ("ABKB" and together with LaSalle, the "LaSalle Entities") shall be permitted to offer securities under any such Demand Registration. The Company shall not be required to effect more than three Demand Registrations under this Section 2(b). A registration requested pursuant to this Section 2(b) will not be deemed to have been effected (and it shall not count as one of the three Demand Registrations) unless the Registration Statement relating thereto has become effective under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingAct; provided, howeverhowever that if, that after such Registration Statement has become effective, the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders offering of the Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such registration will be deemed not to have been effected (and will it shall not count as one of the three Demand Registrations). The Investor may at any time prior to the effective date of the Registration Statement relating to such registration revoke a Demand Registration.
Notice by providing a written notice to the Company (d) Requesting Holders can request a “firm commitment” underwritten offeringin which case such Demand Registration shall not count as one of the three Demand Registrations). If a Demand Registration the Investor so elects, the offering of Registrable Securities pursuant to such registration shall be in the form of an Underwritten Offering. If the managing underwriter or underwriters of such offering advise the Company and the Investor in writing that in their opinion the number of shares of Registrable Securities and shares of DDR, Praedium, the Morg▇▇ ▇▇▇ities or the LaSalle Entities, if any, requested to be included in such offering is a “firm commitment” underwritten sufficiently large to materially and adversely affect the success of such offering, the Requesting Holders Company will include in such registration the aggregate number of a majority of the Registrable Securities and shares of DDR, Praedium, the Morg▇▇ ▇▇▇ities or the LaSalle Entities, if any, requested 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 Companyincluded, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 opinion of such underwriting arrangementsmanaging underwriter or underwriters can be sold without any such material adverse effect; 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 Securities to be transferred free and clear or shares of all liensDDR, claims and encumbrancesPraedium, (B) such Person’s power and authority to effect such transfer and (C) such matters pertaining to compliance with securities laws as the Morg▇▇ ▇▇▇ities or the LaSalle Entities, if any, may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities excluded before all shares proposed to be sold for the account of any Person (by other parties, including the Company) other than a Requesting Holder , have been excluded. If any Registrable Securities are excluded, such registration shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success not count as one of the offering (a “Material Adverse Effect”)three Demand Registrations. 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, If the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large registered hereunder are required to cause a Material Adverse Effectbe excluded pursuant to this paragraph, the number of Registrable Securities of the Requesting Holders Investor and the number of shares of DDR, Praedium, the Morg▇▇ ▇▇▇ities or the LaSalle Entities, if any, 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.reduced
Appears in 1 contract
Sources: Registration Rights Agreement (American Industrial Properties Reit Inc)
Demand Registration. (a) Any Investor may requestSubject to the conditions of this Section 2.1, in writing (if at any time the Company shall receive a “Demand Request”), written request from a Holder or group of Holders that the Company effect register under the Securities Act Shares with an aggregate value (based on the SC Trading Average) of at least $25 million as of the date of such request (a "Demanding Holder") then the Company shall, subject to the limitations of this Section 2.1, effect, as promptly as reasonably practicable, the registration under the Securities Act of all or part of its or their Registrable Securities (that the Holder requests to be registered. Any such requested registration shall hereinafter be referred to as a “"Demand Registration”). Notwithstanding " and any such registration statement filed with the foregoing, no Demand Request will SEC shall be effective hereunder unless the proposed Registrable Securities referred to be sold by the Holders requesting the as a "Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all HoldersStatement."
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file If a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effectiveDemanding Holder so elects, an offering of Registrable Securities pursuant to a Demand Registration shall be in the form of an underwritten offering. Such Demanding Holder shall have the right to select the managing underwriter or underwriters to administer the offering; provided such managing underwriter or underwriters shall be reasonably acceptable to the Company.
(c) The Company shall not be required to effect a registration pursuant to this Section 2.1: (i) after the Company has effected five (5) registrations pursuant to this Section 2.1, and each of such registrations has been declared or ordered effective and kept effective by the Company as required by Section 2.4(a) of this Agreement; (ii) with respect to a registration of Registrable Securities during the period starting with the date thirty (30) days prior to the Company's good faith estimate of the launch date of, and ending on a date ninety (90) days after the closing date of, a Company-initiated registered offering of equity securities or securities convertible into or exchangeable for equity securities; provided that the Company is interfered with by actively employing in good faith commercially reasonable efforts to launch such registered offering; (iii) during any stop orderScheduled Black-out Period; (iv) if the Company has notified the Holder that, injunction in the good faith judgment of the Company, it would be materially detrimental to the Company or its securityholders for such registration to be effected at such time or (v) if the filing or initial effectiveness of a Demand Registration Statement at any time would require the Company to make disclosure of any event that the Board of Directors of the Company determines would not be in the best interests of the Company and its shareholders due to a pending transaction, investigation or other order or requirement event, including any public disclosure of material non-public information, where such disclosure would, at that time, materially adversely affect the Company and its shareholders, in which events described above in clauses (ii), (iv) and (v), the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the SEC or other governmental agency or court, request of the Holder; provided that such registration will right to delay a request shall be deemed exercised by the Company for not to have been effected more than two periods in any twelve (12) month period and will not count as a Demand Registrationmore than ninety (90) days in the aggregate in any twelve (12) month period.
(d) Requesting Holders can Promptly upon receipt of any request a “firm commitment” underwritten offering. If for a Demand Registration is a “firm commitment” underwritten offeringpursuant to Section 2.1(a) (but in no event more than five Business Days thereafter), the Requesting Company shall deliver a written notice (a "Demand Notice") of any such registration request to all other Holders of a majority Registrable Securities, and the Company shall include in such Demand Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten Business Days after the date that the Demand Notice has been delivered. All requests made pursuant to this Section 2.1(d) shall specify the aggregate amount of the Registrable Securities to be registered in a Demand Registration shall select and the investment banking firm or firms to manage the underwritten offering, provided that such selection shall be subject to the consent intended method of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 distribution 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registrationsecurities.
(e) No securities to be sold for If the account managing underwriter or underwriters of any Person (including a proposed underwritten offering of the Company) other than a Requesting Holder shall be Registrable Securities included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Board of Directors of the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). Furthermorethat, in the event the managing underwriter its 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 sentencetheir opinion, the amount number of Registrable Securities proposed securities requested to be included in such Demand Registration by Requesting Holders is sufficiently large exceeds the number that can be sold in such offering without being likely to cause have a Material Adverse Effectsignificant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Registrable Securities of the Requesting Holders securities to be included in such Demand Registration shall equal be allocated as follows:
(i) first, up to 100% of the Registrable Securities that the Demanding Holder proposes (or Holders propose) to include in the Demand Registration;
(ii) second, and only if all the securities referred to in clause (i) have been included, the number of shares which Registrable Securities that, in the Company is so advised opinion of such managing underwriter or underwriters can be sold in without having such offering without a Material Adverse Effect and adverse effect, with such shares shall number to be allocated pro rata among the Requesting Holders that have requested to participate in such Demand Registration based on the basis of the relative number of Registrable Securities requested to be included in such registration then held by each such Requesting Holder (provided that any securities thereby allocated to a Holder that exceed such Holder.'s request shall be reallocated among the remaining requesting Holders in like manner);
(fiii) Upon receipt third, and only if all the securities referred to in clause (ii) have been included, the number of any Demand Requestsecurities, if any, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 proposes to include in such Demand Registration registration that, in the opinion of the managing underwriter or underwriters, can be sold without having such portion adverse effect; and
(iv) fourth, and only if all the securities, if any, referred to in clause (iii) have been included, the number of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed securities proposed to be “Requesting Holders” for purposes offered by security holders having registration rights existing as of the date of this Section 4.01(f)Agreement that, in the opinion of the managing underwriter or underwriters, can be sold without having such adverse effect.
(g) The Company Any registration pursuant to this Section 2.1 may defer be required by the filing (but not the preparation) Demanding Holders to be effected by means of a shelf registration statement required by Section 4.01(afiled with the SEC if the Company qualifies to file using either (i) 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 Form F-3 or S-3 or (ii) belowany successor form or other appropriate form under the Securities Act (a "Shelf Registration Statement") if relating to any or all of the Registrable Securities in accordance with the methods and distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act. The Company shall use its commercially reasonable efforts to cause any Shelf Registration Statement to remain effective, including by filing extensions of the Shelf Registration Statement so long as Holder continues to hold Registrable Securities that are registered pursuant to the Shelf Registration Statement. The Company shall use its reasonable best efforts to keep such Shelf Registration Statement continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by Holders, subject to the other terms of this Section 2, until the earlier of (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration Statement or another registration statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder).
(h) If the continued use of such Shelf Registration Statement at the any time would require the Company receives to make disclosure of any event that the Demand Request, Board of Directors of 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 determines would not be required if such registration statement were not filed), and in the Board determines in good faith that such disclosure would be materially detrimental to best interests of the Company and its stockholders shareholders due to a pending transaction, investigation or (ii) prior to receiving other event, including any public disclosure of material non-public information, where such disclosure would, at that time, materially adversely affect the Demand RequestCompany and its shareholders, the Board had determined Company may, upon giving at least ten days' prior written notice of such action to effect the Holders, suspend all Holders' ability to use the Shelf Registration Statement (a registered underwritten public offering of the Company’s Securities for the Company’s account and "Shelf Suspension"); provided that the Company had taken substantial steps shall not be permitted to exercise a Shelf Suspension for more than two periods in any twelve (including, but 12) month period and not limited to, selecting a managing underwriter for such offeringmore than ninety (90) and is proceeding with reasonable diligence to effect such offeringdays in the aggregate in any twelve (12) month period. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) shall be lifted, and the requested registration statement shall be filed forthwith, if, in In the case of a deferral pursuant Shelf Suspension, the Holders agree to clause (i) suspend use of the preceding sentenceapplicable prospectus in connection with any sale or purchase of, the negotiations or other activities are disclosed offer to sell or terminatedpurchase, orRegistrable Securities, in the case of a deferral pursuant to clause (ii) upon receipt of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order notice referred to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreementabove. The Company shall immediately notify the Holders upon the termination of any Shelf Suspension, amend or supplement the prospectus, if necessary, so it does not contain any material untrue statement or omission and furnish to the Holders such numbers of copies of the prospectus as so amended or supplemented as the Holders may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncereasonably request.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time and from time to time prior to the seventh anniversary of the closing of the Public Offering, upon written notice from a Holder in writing (a “Demand Request”), the manner set forth in Section 12(h) requesting that the Company effect the registration under the Securities Act of any or all of such Holder’s Registrable Securities, which notice shall specify the intended method or part methods of disposition of such Registrable Securities, the Company shall use its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities best efforts to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representeffect, in the aggregatemanner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, provided that:
(i) if (A) prior to receipt of a request for registration pursuant to this Section 2(a), the Company was planning an immediate offering of securities by the Company and (B) within five business days after receipt of such request, the managing underwriter of such planned offering advises the Company in writing (with a copy to the Holder requesting registration) that, in such firm’s good faith opinion, a registration at the time and on the terms requested would materially and adversely affect the previously planned offering, then the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (1) the abandonment of such planned offering, (2) 90 days after the completion of such offering, (3) the termination of any “hold back” period obtained by the underwriter(s) of such offering from any person in connection therewith or (4) 180 days after receipt by the Holder requesting registration of the managing underwriter’s written opinion referred to above in this subsection (i);
(ii) if, while a registration request is pending pursuant to this Section 2(a), the Company determines in good faith that (A) the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or (B) the Company then is unable to comply with SEC requirements applicable to the requested registration, the Company may delay effecting a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material, or the Company is able to comply with applicable SEC requirements, as the case may be, and (2) 45 days after the Company makes such good faith determination, provided that the Company shall not be permitted to delay a requested registration in reliance on this clause (ii) more than 35% once in any 24-month period; and
(iii) the Company shall not be obligated to file a registration statement relating to a registration requested pursuant to this Section 2(a): (A) within six months after the effective date of the total any other registration statement filed in response to a request pursuant to this Section 2(a); (B) if such registration request is for a number of Registrable Securities held representing less than 7.5% of the then issued and outstanding common equity of the Company (unless the Holders making the demand own at least 5% of the issued and outstanding common equity of the Company and the demand is for all their Registrable Securities) or (C) if the aggregate number of Registrable Securities owned by all HoldersHolders represents less than 5% of the issued and outstanding common equity of the Company.
(b) Each Demand Request shall specify Notwithstanding any other provision of this Agreement to the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file contrary:
(i) a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving requested by a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities Holder pursuant to Section 4.01(a); provided2(a) shall not be deemed to have been effected (and, furthertherefore, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(enot requested) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(cA) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, registration statement filed in connection with such withdrawn registration); provided, however, that if, after it therewith has become effective, an offering of Registrable Securities pursuant to a (B) if, after such registration statement has become effective, it is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 court for any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities to be sold for the account of any Person (including the Company) reason other than a Requesting misrepresentation or an omission by such Holder shall be included in and, as a Demand Registration to the extent that the managing underwriter result thereof, 90% or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success more of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration registered cannot be completely distributed in accordance with the preceding sentence plan of distribution set forth therein 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;
(ii) a registration requested by a Holder pursuant to Section 2(a) and later withdrawn at the request of such Holder, whether prior to or after the effectiveness of the related registration statement, shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
have been effected (g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (orand, if longertherefore, 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 filedrequested), and the Board determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) provided that, where a request is withdrawn prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement with the SEC, such Holder can require the Company to disregard for purposes of Section 2(a)(iii) one such requested registration in any six month period; and
(iii) nothing herein shall modify the obligation of a Holder (other than Code) to pay the Registration Expenses incurred in connection with any withdrawn registration.
(c) In the event that any registration requested pursuant to this Section 4.01(g2(a) shall be liftedinvolve, in whole or in part, an underwritten offering, the requesting Holder shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter, and the Company shall have the right to designate one underwriter reasonably satisfactory to the Holder as a co-manager of such underwritten offering.
(d) The Company shall have the right to include additional securities offered for the account of any person (including the Company) in any registration of Registrable Securities requested registration statement shall be filed forthwith, if, in the case of by a deferral Holder 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g2(a), ; provided that the Company shall promptly (but in any event within ten days), upon determining not have the right to seek include such deferral, deliver additional securities to each Requesting Holder a certificate signed by an executive officer the extent the managing underwriter of the Company stating that the Company is deferring offering advises such filing pursuant to this Section 4.01(g) and Holder in writing (with 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice copy to the Company; if withdrawn) that, in such firm’s good faith opinion, registration of such additional securities would materially and adversely affect the Demand Request offering and sale of the Offered Registrable Securities then contemplated by such Holder, except that Code shall be deemed not required to have been made for all purposes of this Agreement. The Company may defer include Registrable Securities owned by the filing of a particular registration statement pursuant Pre-IPO Stockholders to this Section 4.01(g) only oncethe extent required by the Investors Securities Agreement and Executive Securities Agreements, in each case as in effect on the date hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Houston Wire & Cable CO)
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that the Company effect the registration under the Securities Act of all On or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities prior to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)each Filing Date, the Company shall prepare and file with the Commission a registration statement under Registration Statement covering the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use resale of all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be registered in made on a Demand continuous basis pursuant to Rule 415. Each Registration shall select the investment banking firm or firms to manage the underwritten offering, provided that such selection 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 consent provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Company, which consent shall Holders or to make any disclosure contained therein not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(amisleading) unless such Person (i) agrees to sell such Person’s Registrable Securities on substantially the basis provided in any underwriting arrangements described above “Plan of Distribution” attached hereto as Annex A and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under substantially the terms of such underwriting arrangements“Selling Stockholder” section attached hereto as Annex B; provided, however, that no such Person Holder shall be required to make be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any representations event no later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or warranties 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 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 (the “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) 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 such registration other than representations provision of this Agreement and warranties 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 (A) such Person’s ownership advocate with the Commission to maximize the number of his or its Registrable Securities to be transferred free and clear of all liensregistered), claims and encumbrances, (B) such Person’s power and authority unless otherwise directed in writing by a Holder as 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 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 other than Registrable Securities;
(ii) Second, the 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 unregistered Warrant Shares held by such Holders); and
(iii) Third, the Company shall reduce Registrable Securities represented by Shares (applied to the Holders on a pro rata basis based on the total number of unregistered Shares held by such Holders). In the event of a reduction hereunder, the Company shall give the Holder at least five (5) Trading Days’ prior written notice along with the calculations as to such ▇▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, then the Company shall use its reasonable best efforts to 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 liability 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 Person 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. 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 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 proportion theretofull. 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 providedreasonably acceptable to the Holder and the Company’s transfer agent, furtherif any, (ii) to a Holder with respect to an Event caused by any action of such Holder or failure of such Holder to take any action that such liability will be limited ▇▇▇▇▇▇ is required to take hereunder, or (iii) to a Holder in the net amount received by such Person from the sale event it is unable to lawfully sell any of his or its Registrable Securities pursuant to such registrationbecause of possession of material non-public information.
(e) No securities to be sold If Form S-3 is not available for the account of any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success registration of the 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 resale of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effecthereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Requesting Holders to be included Registration Statement then in effect until such Demand time as a Registration shall equal Statement on Form S-3 covering 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 Securities requested to be included in such registration has been declared effective by each such Requesting Holderthe Commission.
(f) Upon receipt of any Demand RequestNotwithstanding anything to the contrary contained in this Agreement, in no event shall the Company shall promptly (but in be permitted to name any event within 10 days) give Holder or affiliate of a Holder as any underwriter without the prior written notice consent of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f)Holder.
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. (a) Any Investor may request, in writing (In case the Company shall receive from Initiating Holders a “Demand Request”), written request that the Company effect the a registration under the Securities Act with respect to at least 2,000,000 shares of all or part of its or their Common Stock that constitute Registrable Securities (a “Demand Registration”). Notwithstanding as adjusted for stock splits, stock dividends, recapitalizations and similar events) the foregoing, no Demand Request will be effective hereunder unless Company will:
(a) promptly give written notice of the proposed Registrable Securities registration to be sold all other Holders so they may have an opportunity to consider joining in such registration, which they may do (subject to the terms and provisions of this Agreement) at their election within ten (10) days after receipt of the notice of the proposed registration by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.Company; and
(b) Each Demand Request shall specify the number of Registrable Securities proposed as soon as practicable, use its reasonable best efforts to be sold. Subject to Section 4.01(g)effect such registration (including, without limitation, the Company shall execution of an undertaking to file a registration statement 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 to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effectiveAct) as promptly may be so requested and as practicable after would permit or facilitate the sale and distribution of all or such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders portion of such Registrable Securities pursuant to Section 4.01(a); providedas are specified in such request, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, together with respect to each all or such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority portion of the Registrable Securities to be registered of any Holder or Holders joining in such request as are specified in a Demand Registration shall select written request given within ten (10) days after receipt of notice from the investment banking firm or firms Company pursuant to manage the underwritten offering, Section 2(a); provided that such selection shall be subject to the consent of the Company, which consent Company shall not be unreasonably withheld. No Person may participate in obligated to take any registration action to effect any such registration, qualification or compliance pursuant to this Section 4.01(a) unless such Person 2:
(i) agrees In any particular jurisdiction in which the Company would be required to sell execute a general consent to service of process in effecting such Person’s Registrable registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities on the basis provided in any underwriting arrangements described above and Act;
(ii) completes and executes all questionnairesPrior to June 30, powers 2000;
(iii) Within the one hundred twenty (120) day period immediately following the effective date 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 a registration other than representations and warranties as to (A) such Person’s ownership of his or its Registrable Securities 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 statement pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation a firm commitment underwritten public offering of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities to be sold Common Stock for the account of any Person a shareholder (including Purchaser) of the Company) Company who has exercised a demand right to register shares of Common Stock (other than a Requesting Holder shall be included in registration relating solely to a Demand Registration Commission Rule 145 transaction, a registration relating solely to the extent that the managing underwriter employee benefit plans, or underwriters shall advise the Company a registration statement on Form S-3 (or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”any similar short-form registration statement). 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.);
(fiv) Upon receipt of any Demand Request, Within the Company shall promptly sixty (but in any event within 10 days60) give written notice of such proposed Demand Registration to all other Investors, who shall have day period immediately following 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) effective date of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date on Form S-3 (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 similar short-form registration statement (but would not be required if such registration statement were not filed), and the Board determines in good faith that such disclosure would be materially detrimental statement) pertaining to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered firm commitment underwritten public offering of the Company’s Securities Common Stock 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 another shareholder of the Company stating that the Company is deferring such filing pursuant who has exercised a demand right to this Section 4.01(g) and a general statement register shares 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.Common Stock (other than a
Appears in 1 contract
Sources: Registration Rights Agreement (Healtheon Webmd Corp)
Demand Registration. (a) Any Investor may requestThe Company agrees that, in writing at any time after the Closing Date, upon the request of Emerson (a “"Demand Request”Registration"), that the Company effect the it will file a registration statemen▇ (▇ "▇egistration Statement") under the Securities Act as to the number of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number shares of Registrable Securities held by all Holders.
specified in such request subject to the limitations described in Section 5.01(b); provided that (bi) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall not be required to file more than three Registration Statements that become effective and remain effective for the period referred to in Section 5.04(a), (ii) subject to the second proviso in Section 5.01(b), Emerson shall not make more than one request for a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving ▇▇ ▇▇▇ twelve month period, (iii) the Registrable Securities for which a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to Registration has been requested by Emerson must be declared effective by the SEC at least two million Shares (or, if eligibleless, to become automatically effectiveall of the Sh▇▇▇▇ ▇▇en held by Emerson and its Subsidiaries), (iv) as promptly as practicable after such filing; providedthe proposed offering of Shares of ▇▇▇▇▇▇▇able Securities must be an underwritten offering, however, that (v) the Company need effect only two (2) Demand Registrations shall not be required to file a shelf registration statement pursuant to Demand Requests Rule 415 of the Securities Act under this Section 5.01(a), (vi) prior to the first anniversary of the Closing Date, no request to register any Registrable Securities may be made by Holders of prior to such time as the Company is required to file a Registration Statement for such Registrable Securities pursuant to Section 4.01(a5.01(b); provided, further, that if any Registrable Securities requested (vii) the Company shall not be required to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as effect a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and if within 10 days after receipt of a request, therefor the Company has performed provides written notice of its obligations hereunder in all material respectsbona fide intention to file within 60 days a registration statement for an underwritten public offering of securities for its own account, in which case such demand will count as and (viii) the Company shall not be required to effect a Demand Registration unless during the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering period from the date of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securitiesfiling of, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, ending 90 days after the effective date of the of, any 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 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 had determined to effect a registered for an underwritten public offering of securities for the account of the Company’s Securities for . In no event shall the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting 's right to block or defer 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 Demand Registration pursuant to this Section 4.01(g) shall be liftedArticle 5 permit a block or deferral of longer than a cumulative period of six months, and following any such deferrals, Emerson shall have the requested registration statement shall right to have a Demand Registration effected at ▇▇▇ ▇▇▇e during the six month period following such block or deferral without restriction hereunder.
(c) Pursuant to Demand Registrations the Company will not be filed forthwithrequired to register more than (i) four million Shares prior to the date that is one year after the expiration of the Lock-Up Period, if, in (ii) eight million Shares (less any Shares registered under clause (i)) prior to the case date that is two years after the expiration of a deferral pursuant to the Lock-Up Period or (iii) twelve million Shares (less any Shares registered under clause (i) and (ii)) prior to the date that is three years after the expiration of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) Lock-Up Period; provided that any of the preceding sentencenumbers shall be adjusted (x) based on the number of Shares in excess of twelve million Shares delivered by the Company to Emerson and its Subsidiaries at the Closing Date, (y) based on any Adju▇▇▇▇▇▇ Event that occurs after the proposed registration Closing Date but before the effective date of the relevant Demand Registration, and (z) if Emerson requests, and the Company consents, to increase the numbers in ▇▇▇ ▇▇▇egoing limitations (such consent not to be unreasonably withheld, where it will be reasonable for the Company’s account is abandoned. In order Company to defer refuse such consent if it would be reasonably expected to have an adverse effect on the filing trading price of a registration statement pursuant to this Section 4.01(gthe Shares), the Company numbers in clause (b)(i) and (b)(ii) above shall promptly be increased by no more than four million Shares multiplied by the proportion of the year that has passed (but as of the date of the request) from the date that is one year and two years respectively after the expiration of the Lock-Up Period provided further that the limitations described in any event within ten daysSections 5.01(a)(ii), upon determining (vii) and (viii), this Section 5.01(b) and the proviso in Section 5.04(a) shall not apply if Emerson's Common Stock Interest is equal to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating or greater than 12.5% and n▇▇▇▇▇▇▇▇▇nding that the Company has fully performed its obligations under Article 2: (A) Emerson designates a representative to serve on the Board in accordance ▇▇▇▇ ▇ection 2.01 of this Agreement and such designee is deferring such filing pursuant to this Section 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice not elected or appointed to the Company; if withdrawnBoard for any reason, or (B) Emerson's representative on the Demand Request shall be deemed Board is removed and not to have been made for all purposes replaced by a ▇▇▇▇▇▇▇▇▇ative designated by Emerson in accordance with Section 2.01 of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor At any time after the issuance of the Shares, the holders of Restricted Stock constituting at least sixty-six and two-thirds percent (66 2/3%) of the total shares of Restricted Stock then outstanding may request, in writing (a “Demand Request”), that request the Company effect the registration to register under the Securities Act not less than twenty-five percent (25%) of all the shares of Restricted Stock held by such requesting holder or part of its or their Registrable Securities (a “Demand Registration”)holders for sale in the manner specified in such notice. Notwithstanding anything to the foregoingcontrary contained herein, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of made under this Section 4.01(f).
4 within one hundred eighty (g180) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 a registration statement contemplated filed 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 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 had determined to effect covering a registered firm commitment underwritten public offering in which the holders 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 Restricted Stock shall have been entitled to effect such offering. A deferral of the filing of a registration statement join pursuant to Sections 5 or 6 and in which there shall have been effectively registered all shares of Restricted Stock as to which registration shall have been requested.
(b) Following receipt of any notice under this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g)4, the Company shall promptly immediately notify all holders of Restricted Stock from whom notice has not been received and shall use its best efforts to register under the Securities Act, for public sale in accordance with the method of disposition specified in such notice from requesting holders, the number of shares of Restricted Stock specified in such notice (but and in any event within ten days), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed all notices received by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 4.01(gfrom other holders within thirty (30) and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving the giving of such certificatenotice by the Company). If such method of disposition shall be an underwritten public offering, the holders of a majority of the Registrable Securities held shares of Restricted Stock to be sold in such offering may designate the managing underwriter of such offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing sentence, if the Company elects to include shares of Common Stock in such offering pursuant to Section 4(d) hereof such that the number of shares requested for inclusion by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request Company (prior to any cut back by giving notice an underwriter) is equal to or greater than the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes number of this Agreement. The Company may defer the filing shares of a particular registration statement included Restricted Stock pursuant to this Section 4.01(g4, then the Company may, in its sole discretion, designate the managing underwriter of such offering. The Company shall be obligated to register Restricted Stock pursuant to this Section 4 on two (2) occasions only, PROVIDED, HOWEVER, that such obligation shall be deemed satisfied only oncewhen a registration statement covering all shares of Restricted Stock specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto.
(c) Notwithstanding the foregoing, the Company shall not be obligated to effect any demand registration: (i) unless such registration would have a net aggregate offering price exceeding $500,000; or (ii) if such demand is made within 12 months of a previous demand registration. In addition, if the President or Chief Executive Officer of the Company executes a certificate giving notice of the Company's intention to file a registration statement or stating that in the good faith judgment of the Board of Directors of the Company the offering would be detrimental to the Company or its shareholders, the Company may delay such request one or more times (but only once in any 12 month period) for a period not to exceed 180 days after receipt of the request pursuant to Section 4(a) above.
(d) The Company shall be entitled to include in any registration statement referred to in this Section 4, for sale in accordance with the method of disposition specified by the requesting holders, shares of Common Stock to be sold by the Company for its own account, except as and to the extent that, in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Restricted Stock to be sold. In such event, the number of shares of Common Stock to be registered on behalf of the Company, if any, shall be computed as set forth in Section 4(e) below.
(e) Whenever a registration requested pursuant to this Section 4 is for an underwritten public offering, only shares of Common Stock which are to be included in the underwriting may be included in the registration. Notwithstanding the provisions of Sections 4(b) and 4(c), if the underwriter determines that marketing factors require a limitation of the total number of shares of Common Stock to be underwritten or a limitation of the total number of shares of Common Stock to be sold by the Company, then the number of shares to be included in the registration and the underwriting shall first be allocated among all holders who indicated to the Company their decision to distribute any of their Restricted Stock through such underwriting, in proportion, as nearly as practicable, to the respective number of shares of Restricted Stock requested for inclusion in the registration by such holders , then the remainder, if any, to the Company. No stock excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If the Company determines not to participate in any such underwriting, it may elect to withdraw therefrom by written notice, within five (5) days of notice to the Company of such underwriter's marketing limitation, to the holders of Restricted Stock and the underwriter. The securities so withdrawn from such underwriting shall also be withdrawn from such registration.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time following the execution of this Agreement and the exercise of the Warrant, in writing (a “Demand Request”)the Holder may, by written notice to the Company, request that the Company effect the registration Register under the Securities Act of all or part any portion of its or their the Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold Shares held by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, Holder for sale in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and manner specified in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingnotice; provided, however, that the Company need effect only two (2) Demand Registrations shall not be obligated to Register any Registrable Shares pursuant to Demand Requests made such request: (i) subject to Section 3 below, during the period beginning thirty (30) days prior to the filing, and ending on a date ninety (90) days following the effective date, of a Registration Statement filed by Holders the Company relating to an Underwritten Offering only of Registrable Securities the Company’s capital stock (other than a Registration Statement for the Company’s capital stock which does not give rise to incidental registration rights pursuant to Section 4.01(a3 below); provided, further, that or (ii) if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed provides a certificate of its obligations hereunder in all material respectsChief Executive Officer stating that a Material Transaction exists at the time of the request, in which case event no such demand will count as a Demand Registration unless Statement need be filed until the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with earlier of the lapse of sixty (60) days from the issuance of such withdrawn registration)certificate or the date on which such Material Transaction no longer exists; provided, however, that if, after it has become effective, an offering of the Company may not exercise its right under this clause (ii) more than twice in any twelve (12)-month period. The Company shall be obligated to Register Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand RegistrationShares under this Section 2 on one (1) occasion.
(db) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities to be registered in a Demand Registration shall select the investment banking firm or firms to manage the underwritten offering, provided that such selection The Company 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 entitled to include in such Demand any Registration such portion Statement referred to in this Section 2 for which the method of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration distribution is an Underwritten Offering, for sale in accordance with the preceding sentence method of disposition specified by the Holder, Common Shares to be sold by the Company for its own account, except as and to the extent that, in the opinion of the managing underwriter (if such method of disposition shall be deemed an Underwritten Offering), such inclusion would adversely affect the marketing of the Registrable Shares to be “Requesting Holders” for purposes of this Section 4.01(fsold. Except with respect to Registration Statements on Form S-8 (or any successor form).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 will not file with the Commission 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)with respect to its Common Stock, and whether for its own account or that of other stockholders, from the Board 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 had determined to effect a registered underwritten public offering date 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 receipt of a registration statement notice from the Holder pursuant to this Section 4.01(g) shall be lifted, and 2 until the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) completion of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case period of a deferral pursuant to clause (ii) distribution of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceRegistration contemplated thereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Origen Financial Inc)
Demand Registration. (ai) Any Investor may requestAt any time commencing on the earlier of (A) six months following the effective date of an Initial Public Offering and (B) the third anniversary of the date hereof, in writing (a “Demand Request”)and expiring five years thereafter and provided, that the Company effect the registration such Securities shall not at that time be eligible for sale pursuant to Rule 144(k) under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)Act, the Company shall file a registration statement under the holders of OCM Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Northstar Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, subject to the next two sentences, on one occasion (which right is in addition to the registration rights under Section 4.1 hereof), exercisable by written notice to Holdings (the "Demand Notice") given by the holders of a majority (the "Demanding Holders") of the OCM Securities and Northstar Securities then outstanding that have not been sold pursuant to a Registration Statement or pursuant to Rule 144(k) and have had all transfer restrictions contained thereon removed (the "Demand Securities"), to have Holdings prepare and file with the Securities and Exchange Commission (the "Commission") a registration statement ("Demand Registration Statement") and such other documents, including a prospectus, as may be necessary in the opinion of counsel for Holdings, and shall keep such registration statement effective and the disclosure in such documents current, in order to comply with the provisions of the Act, so as to permit a public offering and sale of the Demand Securities by the holders thereof for nine consecutive months.
(ii) A registration requested pursuant to this Section 4.2 shall not be deemed to have been effected (and thereby the right to make a demand not used) (A) unless a Registration Statement with respect thereto has become effective, provided that a registration which does not become effective after Holdings has filed a Registration Statement with respect thereto solely by reason of the refusal to proceed of the holders (other than a refusal to proceed based upon the advice of counsel relating to a matter with respect to each Holdings) shall be deemed to have been effected by Holdings at the request of such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (holders unless the Requesting Holders withdraw all their Registrable holders of Demand Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders shall have elected to pay all Registration Expenses, as hereinafter defined, expenses referred to in Section 4.3(b) in connection with such withdrawn registration); provided, however, that (B) if, after it has become effective, an offering of Registrable Securities pursuant such registration becomes subject to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or courtcourt for any reason and such order, injunction or requirement is not promptly withdrawn or lifted, or (C) the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected and will not count as a Demand Registrationsatisfied, other than by reason of some act or omission by such holders.
(db) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who Holdings shall have the right, exercisable by written notice to the Company within 20 days of their at its option, following receipt of the Company’s noticedemand referred to in Section 4.2(a) above, to elect to include in such Demand Registration such portion lieu of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 referred to in such registration statement (but would not be required if such registration statement were not filed)demand, and the Board 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 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 undertake the filing of a registration statement under the Act with the Commission for the sale by Holdings of securities of Holdings, in which case, the Parties (including OCM and Northstar) shall be permitted to exercise their rights under Section 4.1 above. Should Holdings exercise its rights under this Section 4.2(b), the rights of the Demanding Holders to make a demand under Section 4.2(a) above on one occasion shall not be deemed to have been exercised, and such parties shall retain such right subject to the limitations contained therein.
(c) In Holdings' discretion, it may include a sale of shares or shares owned by others or an issuance of shares by Holdings in a registration pursuant to this Section 4.01(g) shall be lifted, and 4.2. In the requested event of an Underwriter's Cutback in connection with a 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.this
Appears in 1 contract
Demand Registration. (a) Any Investor may requestIf, in writing (a “Demand Request”)at any time during the five-year period commencing December 1, that 1999, the Company effect the registration under the Securities Act of all or part of its or their Registrable Securities (shall receive a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the written request from Eligible Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, who in the aggregate, more than 35aggregate own at least 25% of the total number of shares of Common Stock then included (or upon such exercises would be included) in the Registrable Securities held by (the "Majority Holders"), to register the sale of all Holders.
(b) Each Demand Request shall specify the number or part of such Registrable Securities proposed to be sold. Subject to Section 4.01(g)Securities, the Company shall shall, as promptly as practicable, at the Company's sole cost and expense (other than the fees and disbursements of counsel for the Eligible Holders, and the underwriting discounts if any, payable in respect of the Registrable Securities sold by the Eligible Holders), prepare and file with the Commission a registration statement under sufficient to permit the public offering and sale of the Registrable Securities Act through the facilities of all appropriate securities exchanges, if any, on which the Company's Common Stock is being sold or on the over-the-counter market, and will use its best efforts through its officers, directors, auditors, and counsel to effect the Demand Registration cause such registration statement to become effective as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingpracticable; provided, however, that the Company need effect shall only two (2) Demand Registrations pursuant be obligated to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request file one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities to be registered in a Demand Registration shall select the investment banking firm or firms to manage the underwritten offering, statement; 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 if an undersigned Eligible Holder does not offer to include any portion of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to in the registration statement so prepared, then such registration.
(e) No securities to be sold for the account of any Person (including the Company) other than a Requesting Eligible Holder shall be included in a Demand Registration entitled to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion one separate demand covering all of such securities will materially and adversely affect the price or success of the 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 his Registrable Securities which have not been previously sold pursuant to Rule 144 under the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Act. The Company shall promptly (but in not be obligated to effect any event within 10 days) give written notice registration of such proposed Demand Registration its securities pursuant to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g1(b) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days within nine months after the effective date of the a previous registration statement prepared and filed in accordance with Section 1(a) or 1(b). Within three business days after receiving any request 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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g1(b), the Company shall promptly (but in any event within ten days)give written notice to all the other Eligible Holders, upon determining to seek such deferral, deliver to advising each Requesting Holder a certificate signed by an executive officer of the Company stating them that the Company is deferring proceeding with such filing pursuant registration and offering to this Section 4.01(g) and include therein all or any portion of any such other Eligible Holder's Registrable Securities, provided that the Company receives a general statement written request to do so from such Eligible Holder within 30 days after receipt by him or it 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once's notice.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time prior to such time as the rights under this Section 2 terminate with respect to a Holder as provided in Section 2(e) hereof, upon written notice from such Holder in writing (a “Demand Request”), the manner set forth in Section 12(h) hereof requesting that the Company effect the registration under the Securities Act of any or all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request such Holder, which notice shall specify the number intended method or methods of disposition of such Registrable Securities proposed to be sold. Subject to Section 4.01(g)Securities, the Company shall file a use its best efforts to effect, in the manner set forth in Section 5, the registration statement under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including in an offering on a delayed or continuous basis under Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act, if (x) the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering and (y) the Company consents to such an offering (except that no consent of the Company will be required if the contemplated offering on a delayed or continuous basis under Rule 415 is the offering of Registrable Securities upon the exercise, exchange or conversion of Exchangeable Securities as contemplated by Section 6 hereof)), provided that:
(i) if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), the Holder or Holders making such request are advised in writing that the Company has in good faith commenced the preparation of a registration statement for an underwritten public offering prior to receipt of the notice requesting registration pursuant to this Section 2(a) and the managing underwriter of the proposed offering has determined that in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect the offering that is contemplated by the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) (a "Transactional Deferral") until the Demand Registration as promptly as possible and in any event within 90 earliest of (A) the abandonment of such offering by the Company, (B) 60 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective receipt by the SEC Holder or Holders requesting registration of the managing underwriter's written opinion referred to above in this clause (ori), unless the registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, and (C) if eligiblethe registration statement for such offering has become effective and such offering has commenced on or prior to such 60th day, to become automatically effective) as promptly as practicable after such filing; the day on which the restrictions on the Holders contained in Section 10 hereof lapse, provided, however, that the Company need effect only two shall not be permitted to delay a requested registration in reliance on this clause (2i) Demand Registrations more than once in any 12-month period;
(ii) if, while a registration request is pending pursuant to Demand Requests made by Holders this Section 2(a), the Company determines, following consultation with and receiving advice from its legal counsel, that the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and the disclosure of which the Company determines reasonably and in good faith would have a material adverse effect on the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such material information is otherwise disclosed to the public or ceases to be material and (B) 90 days after the Company makes such determination;
(iii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) prior to the first anniversary of the closing of the Public Offering, (B) within a period of 365 calendar days after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a), or (C) if such registration request is for a number of Registrable Securities having a Fair Market Value on the business day immediately preceding the date of such registration request of less than $50,000,000.00; and
(iv) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 4.01(a); provided2: (A) in the case of a registration request by Zapa▇▇ ▇▇ any Permitted Transferee that has acquired, furtherin the transaction in which it became a Permitted Transferee, at least a majority of the then issued and outstanding Voting Stock, on more than three occasions after such time as Zapa▇▇ ▇▇ such Permitted Transferee, as the case may be, owns less than a majority of the voting power of the outstanding capital stock of the Company (it being acknowledged that if any Registrable Securities requested so long as Zapa▇▇ ▇▇ such Permitted Transferee owns a majority of the voting power of the outstanding capital stock of the Company, there shall be no limit to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) belownumber of occasions on which Zapa▇▇ ▇▇ such Permitted Transferee may exercise such rights in accordance with, and subject to, the Holders shall have other provisions hereof), or (B) in the rightcase of a Holder other than Zapa▇▇ ▇▇ a Permitted Transferee described in clause (A) above, on more than the number of occasions permitted such Holder in accordance with respect to each such exclusion, to request one additional Demand RegistrationSection 11 hereof.
(cb) A Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration will requested by a Holder pursuant to this Section 2 shall not count as a Demand Registration until it has become effective be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (A) unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, registration statement filed in connection with such withdrawn registration); provided, however, that if, after it therewith has become effective, an offering of Registrable Securities pursuant (B) if after such registration statement has become effective, it becomes subject to a registration is interfered with by any stop order, or there is issued an injunction or other order or requirement decree of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of the Registrable Securities so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not satisfied by reason of some act, misrepresentation or omission by the Company and are not waived by the purchasers or underwriters; and
(ii) nothing herein shall modify a Holder's obligation to have been effected and will not count as a Demand Registrationpay Registration Expenses, in accordance with Section 4 hereof, that are incurred in connection with any withdrawn registration requested by such Holder.
(dc) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Requesting Holders of a majority Fair Market Value of the Registrable Securities to be registered in a Demand Registration connection with such offering shall select have the investment banking firm or firms right to manage designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering, provided that and the Company shall have the right to designate one underwriter reasonably satisfactory to such selection Holders as a co-manager of such underwritten offering.
(d) The Company shall be subject have the right to cause the consent registration of additional securities for sale for the account of any person (including the Company, which consent shall not be unreasonably withheld. No Person may participate ) in any registration of Registrable Securities requested by any Holder pursuant to Section 4.01(a2(a) unless only to the extent the managing underwriter or other independent marketing agent for such Person offering (iif any) agrees determines that, in its opinion, the additional securities proposed to sell such Person’s Registrable Securities on be sold will not materially and adversely affect the basis provided in any underwriting arrangements described above offering and (ii) completes and executes all questionnaires, powers sale 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 Securities to be transferred free and clear registered in accordance with the intended method or methods of all liens, claims and encumbrances, (B) disposition then contemplated by such Person’s power and authority Holder. The rights of a Holder to effect cause the registration of additional Registrable Securities held by such transfer and (C) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation Holder in any registration of such Person to indemnify Registrable Securities requested by another Holder pursuant to any such underwriting arrangements Section 2(a) shall be several, not joint and several, among such Persons selling Registrable Securities, and governed by the liability agreement of each such Person will be the Holders with respect thereto as provided in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registrationSection 11(a).
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration not be obligated to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of file a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental relating to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement request by a Holder pursuant to this Section 4.01(g) shall be lifted2 from and after such time as such Holder first owns Registrable Securities representing (assuming for this purpose the conversion, and the requested registration statement shall be filed forthwith, if, in the case exchange or exercise of a deferral pursuant to clause (i) all Registrable Securities then owned by such Holder that are convertible into or exercisable or exchangeable for Voting Stock of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (iiCompany) less than 10% of the preceding sentence, the proposed registration for then issued and outstanding Voting Stock of the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. At any time during the five year period ------------------- following the Closing Date, one or more Requesting Purchasers may make a written request (athe "DEMAND NOTICE") Any Investor may request, in writing (a “Demand Request”), that the Company effect the for registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f"DEMAND REGISTRATION") hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each such Requesting Purchasers. The Demand Request shall Notice will specify the number of shares of Registrable Securities proposed to be soldsold and will also specify the intended method of disposition thereof. Subject to Section 4.01(g)Following receipt of a Demand Notice from such Requesting Purchasers, the Company shall promptly will give written notice of the requested registration to all other Purchasers, and will thereafter file a registration statement on any appropriate form which will cover (i) the Registrable Securities that the Company has been so requested to register by such Requesting Purchasers and (ii) all other Registrable Securities that the Company has been requested to register by any other Purchasers by written request given to the Company within 15 days after the Company's giving of written notice of the Requesting Purchasers' requested registration. Unless each Participating Purchaser shall consent in writing, no party (including the Company) other than any Purchaser, USAA Real Estate Company ("REALCO") or La Salle Advisory Limited Partnership ("LASALLE") shall be permitted to offer securities under any such Demand Registration. The Company shall not be required to effect more than three Demand Registrations under this Section 2(b). A registration requested pursuant to this Section 2(b) will not be deemed to have been effected (and it shall not count as one of the three Demand Registrations) unless the Registration Statement relating thereto has become effective under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingAct; provided, howeverhowever that -------- ------- if, that after such Registration Statement has become effective, the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders offering of the Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected (and will it shall not count as a one of the three Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offeringRegistrations). If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders Participating Purchasers holding in excess of a majority 50% of the Registrable Securities to be registered in covered by a Demand Registration may at any time prior to the effective date of the Registration Statement relating to such registration revoke a Demand Notice by providing a written notice to the Company (in which case such Demand Registration shall select not count as one of the investment banking firm three Demand Registrations). If Participating Purchasers holding in the aggregate in excess of 50% of the Registrable Securities covered by the Demand Registration so elect, the offering of Registrable Securities pursuant to such registration shall be in the form of an Underwritten Offering. If the managing underwriter or firms underwriters of such offering advise the Company and the Participating Purchasers in writing that in their opinion the number of Registrable Securities and shares of Realco or LaSalle, if any, requested to manage be included in such offering is sufficiently large to materially and adversely affect the underwritten success of such offering, provided that the Company will include in such selection shall be subject to registration the consent aggregate number of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities on and shares of Realco or LaSalle, if any, requested to be included which in 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 opinion of such underwriting arrangementsmanaging underwriter or underwriters can be sold without any such material adverse effect; 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 Securities to be transferred free and clear or shares of all liensRealco -------- ------- or LaSalle, claims and encumbrancesif any, (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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities excluded before all shares proposed to be sold for the account of by any Person (other parties, including the Company) other than a Requesting Holder , have been excluded. If any Registrable Securities are excluded, such registration shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success not count as one of the offering (a “Material Adverse Effect”)three Demand Registrations. Furthermore, in the event the managing underwriter or underwriters shall advise the Company or the Requesting Holders that even after exclusion If more than 5% of all securities of other Persons pursuant to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities of the Requesting Holders registered hereunder are required 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 excluded pursuant to this paragraph, the number of Registrable Securities requested of each Participating Purchaser and the number of shares of Realco or LaSalle, if any, to be included in such registration shall be reduced pro rata (according to the total number of Registrable Securities or shares, as the case may be, beneficially owned by each such Requesting Holder.
(f) Upon receipt of any Demand Requestholder), the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days extent necessary to reduce the total amount of their receipt of the Company’s notice, securities to elect to include in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities be included in the offering to the amount recommended by such managing underwriter or underwriters. No registration pursuant to a Demand Registration request or requests referred to in accordance with the preceding sentence this subsection 2(b) shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f)a Shelf Registration.
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (Morgan Stanley Dean Witter Discover & Co)
Demand Registration. (a) Any Investor may requestThe holders of Registrable Securities constituting at least a majority of the total Registrable Securities then outstanding may, in writing by written notice (a the “Demand RequestNotice”), demand that the Company effect the a registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% any portion of the total number of Registrable Securities held by all Holderssuch requesting holders.
(b) Each Demand Request shall specify Notwithstanding the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)foregoing, the Company shall file a registration statement under the Securities Act not be obligated to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a2(a) unless such Person above:
(i) agrees Prior to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above and one hundred eighty (ii180) 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 Company’s initial registered offering of securities to the public;
(ii) belowDuring the period commencing on the date sixty (60) if days prior to the Company’s estimated date of filing of, and ending on the date one hundred eighty (i180) at days immediately following the time effective date of, any Company initiated registration statement subject to Section 3A (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan); provided, that the Company receives the Demand Request, the Company or any of its Subsidiaries are engaged is actively employing in confidential negotiations or other confidential business activities, disclosure of which would be required in good faith all reasonable efforts to cause such registration statement to become effective;
(but would not be required if iii) After the Company has effected two (2) registrations pursuant to Section 2(a) above, and each such registration statement were not filed), and has been declared or ordered effective or has been withdrawn by the Board determines in good faith that such disclosure would initiating holders;
(iv) If the initiating holders propose to dispose of Registrable Securities which may be materially detrimental immediately registered on Form S-3 pursuant to a request made under Section 3B of this Agreement; or
(v) If the Company and its stockholders or (ii) prior furnishes to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), the Company shall promptly (but in any event within ten days), upon determining to seek such deferral, deliver to each Requesting Holder initiating holders a certificate signed by an executive officer the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company is deferring such filing pursuant or its stockholders for a registration statement to this be filed in the near future; provided, that the Company’s obligation to use its best efforts to register, qualify or comply under Section 4.01(g2(a) above shall be deferred for a period not to exceed one hundred eighty (180) days from the date of receipt of written request from the initiating holders and a general statement of the reason for such deferral right shall not be exercised by the Company more than once in any twelve (12) month period.
(c) Subject to the foregoing, following receipt of any Demand Notice from said majority under Section 2(a) above, the Company shall immediately notify all holders of Registrable Securities from whom a Demand Notice has not been received and an approximation shall use its best efforts to register under the Securities Act, for public sale the number of shares of Common Stock specified in the anticipated delay. Within 20 Demand Notice (and in all notices received by the Company from other holders within thirty (30) days after receiving the giving of such certificatenotice by the Company). If such method of disposition shall be an underwritten public offering, the holders of a majority of the Registrable Securities held by to be sold in such offering may designate the Requesting Holders and for which registration was previously requested may withdraw managing underwriter of such Demand Request by giving notice offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed. The Company shall be obligated to register the Registrable Securities pursuant to Section 2(a) above on two (2) occasions only; if withdrawnprovided, the Demand Request that each such obligation shall be deemed not to satisfied only when a registration statement covering all Registrable Securities specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such Registrable Securities shall have been made sold pursuant thereto.
(i) If the Company shall request inclusion in any registration pursuant to this Section 2 of securities being sold for its own account, or if other persons shall request inclusion in any such registration, the initiating holders shall, on behalf of all purposes holders of Registrable Securities, offer to include such securities in the registration subject to the terms of this Agreement.
(ii) Notwithstanding any other provision of this Section 2, if the managing underwriter advises the initiating holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all holders of Registrable Securities and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all such holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such holders at the time of filing the registration statement. The Company may defer shall not limit the filing number of Registrable Securities to be included in a particular registration statement pursuant to this Section 4.01(g2 in order to include shares held by shareholders who are not holders of Registrable Securities or to include in such registration statement securities registered for the Company’s own account. No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any holder to the nearest 100 shares.
(iii) only onceIf any holder of Registrable Securities disapproves of the terms of any underwriting, such person may elect to withdraw from such underwriting by written notice to the Company, the managing underwriter and the initiating holders. The Registrable Securities withdrawn from such underwriting shall also be withdrawn from registration and such Registrable Securities shall not be transferred in a public distribution prior to one hundred eighty (180) days after the effective date of such registration, or such other shorter period of time as the underwriters may require.
Appears in 1 contract
Demand Registration. (a) Any Subsequent to the date that is 150 days following the Closing Date, at any time and from time to time, the Investor may request, in writing (a “Demand Request”), that the Company effect request the registration under the Securities 1933 Act of all or part not less than $1,000,000 in anticipated aggregate offering price of its or their the Registrable Securities then outstanding (a “Demand Registration”"DEMAND REGISTRATION"). Subject to the conditions of Section 3, the Company shall use its best efforts to file such registration statement under the 1933 Act as promptly as practicable after the date any such request is received by the Company and to cause such registration statement to be declared effective. The Company shall notify the Investor promptly when any such registration statement has been declared effective. If more than eighty percent (80%) of the Shares issuable under the Preferred Stock Purchase Agreement have been registered or sold, this provision shall expire. Notwithstanding the foregoing, no Demand Request will the Company shall not be effective hereunder unless required to effect a registration pursuant to this Section 2.3:
(i) if the proposed Registrable Securities requested to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” registered under this Section 2.3 are already included in a registration statement that is effective or pending effectiveness pursuant to Section 4.01(f2.2 or in any other form;
(ii) hereofin any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or
(iii) representafter the Company has effected two (2) registrations pursuant to this Section 2.3, in and such registrations have been declared or ordered effective; or
(iv) during the aggregate, more than 35% period starting with the date sixty (60) days prior to the Company's good faith estimate of the total number date of Registrable Securities held by all Holders.
the filing of and ending on a date one hundred eighty (b180) Each Demand Request shall specify days following the number effective date of Registrable Securities proposed to be sold. Subject a Company-initiated registration subject to Section 4.01(g)1.3 below, provided that the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and is actively employing in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use good faith all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, such registration statement to become automatically effective; or
(v) as promptly as practicable after such filing; provided, however, that if the Company need effect only two (2) Demand Registrations pursuant Investor proposes to Demand Requests made by Holders dispose of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to may be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.on Form S-3 ; or
(cvi) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and if the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless shall furnish to the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering holders of Registrable Securities pursuant to a registration is interfered with certificate signed by any stop order, injunction the Company's Chief Executive Officer or other order or requirement Chairman of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, Board stating that in the Requesting Holders of a majority good faith judgment of the Registrable Securities 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 Board of Directors of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 it would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board determines in good faith that such disclosure would be materially seriously detrimental to the Company and its stockholders or for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than one hundred twenty (ii120) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering days after receipt of the Company’s Securities request of the initiating holders, provided that such right shall be exercised by the Company not more than once in any twelve (12)-month period and provided further that the Company shall not register any securities for the Company’s account and of itself or any other stockholder during such one hundred twenty (120) day period (other than a registration relating solely to the sale of securities of participants in a Company had taken substantial steps (includingstock plan, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence registration relating to effect such offering. A deferral a corporate reorganization or transaction under Rule 145 of the filing of Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement pursuant to this Section 4.01(g) shall be lifted, and covering 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 sale of the Registrable Securities held by Securities, or a registration in which the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes only Common Stock being registered is Common Stock issuable upon conversion of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncedebt securities that are also being registered).
Appears in 1 contract
Sources: Registration Rights Agreement (Family Home Health Services, Inc.)
Demand Registration. (a) Any Investor may requestFrom and after the earlier of October 1, in writing (a “Demand Request”), that 2005 and the Company effect date on which the registration statement filed under the Securities Act registering the sale of the D4 Shares is declared effective by the Commission, a Majority of Holders may, subject to Section 2.4 (Black-Out Rights; Suspension Rights) and Section 2.5 (Holdback Agreements), deliver to the Company a written request that the Company prepare and file with the Commission a registration statement on an appropriate form under the Securities Act (together with any amendments or supplements thereto, a "Demand Registration Statement"), registering under the Securities Act Registrable Securities then outstanding having a Market Value of not less than the lesser of (i) $1,000,000 and (ii) the Market Value of all or part of its or their Registrable Securities then outstanding, to effect an underwritten public offering of Registrable Securities by the initiating Majority of Holders (a “"Demand Registration”"). Notwithstanding the foregoing, no Demand Request will the Company shall not be effective hereunder unless the proposed Registrable Securities obligated to be sold by the Holders requesting the effect more than one Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holdersany 12-month period.
(b) Each Any request for a Demand Request Registration shall specify the number of Registrable Securities proposed to be soldsold and the intent to effect an underwritten public offering of such Registrable Securities. Subject to Section 4.01(g)Within 10 Business Days after receipt of such request, the Company shall file a will give written notice of such registration statement under the request to any other Holders and include in such registration all such Registrable Securities Act with respect to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that which the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders has received written requests for inclusion therein within 15 Business Days after the mailing of the Company's notice. Each such request will also specify the number of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant and the intend to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each effect an underwritten public offering of such exclusion, to request one additional Demand RegistrationRegistrable Securities.
(c) Subject to Section 2.3(e), if the Majority of Holders requesting the filing of a Demand Registration Statement have a sufficient number of Registrable Securities registered for sale pursuant to a Shelf Registration Statement, the Company may satisfy the request to effect a Demand Registration by filing an appropriate prospectus supplement with the Commission to effect an underwritten public offering; provided, that such underwritten public offering shall be DLI-5880199v6 deemed a Demand Registration and shall be required to satisfy each of the conditions and other requirements for a Demand Registration specified in this Agreement.
(d) A Majority of Holders shall select the lead underwriter or underwriters and any co-manager or co-managers in connection with any underwritten public offering pursuant to this Agreement, after consultation with the Company.
(e) A registration will not count as a Demand Registration until it has become effective effective. For purposes of this Agreement, (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as i) an offering on a Demand Registration unless Statement is deemed to be effected on the Requesting Holders pay all effective date thereof, and (ii) an underwritten public offering on a Shelf Registration Expenses, as hereinafter defined, in connection Statement that is deemed to be a Demand Registration pursuant to Section 2.2(b) is deemed to be effected on the date a prospectus supplement is filed with such withdrawn registrationthe Commission (other than any preliminary prospectus supplement); provided, however, that if, after it has become effective. Notwithstanding the foregoing, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will shall not be deemed not to have been effected and will if such offering is not count consummated as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders result of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities on a breach by the basis provided in Company of its obligations under this Agreement or any underwriting arrangements described above and (ii) completes and executes all questionnairesagreement relating to an underwritten public offering, 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 exercising its rights under Section 2.4 (includingBlack-Out Rights; Suspension Rights), but not limited toand, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence in either case, after the offering would otherwise have been deemed to effect such offering. A deferral of the filing of a registration statement have been effected pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (Circuit Research Labs Inc)
Demand Registration. (a) Any Investor At any time after the earlier to occur of (i) August 30, 1998 or (ii) the date on which the Company becomes subject to Section 13 or Section 15(d) of the Exchange Act, the holders of at least twenty percent (20%) of the Registrable Securities may request the Company register under the Securities Act the Registrable Securities held by such requesting holders (such amount to be at least 20% of the Registrable Securities or a lesser percentage, if the reasonably anticipated aggregate offering price to the public of such public offering (net of reasonably anticipated underwriting discounts and commissions) would exceed $3,000,000) in the manner specified in such request. Upon receipt of such request, the Company shall promptly deliver notice of such request to all Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing (a “Demand Request”)of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, that the Company shall state such in written notice and in such event the right of any Person to participate in such registration shall be conditioned upon their participation in such underwritten public offering and the inclusion of their Registrable Securities in the underwritten public offering 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 of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding Act, but only to the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, extent provided for in the aggregate, more than 35% following provisions of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingthis Agreement; provided, however, that the Company need shall not be required to effect only registration pursuant to a request under this Section 2 more than two (2) Demand Registrations pursuant to Demand Requests made by Holders times for the holders of Registrable Securities as a group. 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 4.01(a)4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested.
(b) If a request for registration pursuant to this section 2 is made and the Company has not previously effected an initial underwritten public offering of its securities, the Company may include in such requested registration any authorized but unissued shares of Common Stock (or authorized treasury shares) for sale by the Company to effect an initial public offering; providedand if the managing underwriter of such initial public offering determines in good faith that the total number of securities sought to be included in such offering should be limited due to the necessity of including in such underwriting or registration securities to be sold for the account of the Company, furtherthe number of shares of Common Stock sought to be included on behalf of the Company shall not be reduced until all other shares of securities sought to be included in such initial public offering (including Registrable Securities) are first reduced in accordance with the priorities set forth in Section 4 hereof. Notwithstanding anything herein to the contrary, that if any in the event (x) the number of shares of Common Stock so included by the Company pursuant to this clause (b) exceeds the number of Registrable Securities requested to be registered pursuant included by the holders who originally requested such registration or (y) if the number of Registrable Securities requested to be included by any holders is reduced by operation of the preceding sentence of this clause (b), then such registration shall be deemed to be a Demand Request are excluded from the applicable Demand Registration registration in accordance with and pursuant to Section 4.01(e) below, 4 and the Holders holders of Registrable Securities shall not be deemed to have the right, with respect to each such exclusion, exercised one of their rights to request one additional Demand Registrationregistration under Section 2.
(c) A With respect to a request for registration will not count pursuant to this Section 2 other than a request as a Demand Registration until it has become effective described in clause (unless b) above, the Requesting Holders withdraw all their Registrable Securities 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 Company has performed its obligations hereunder Shareholders may include in all material respects, in which case each such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with requested registration shares of Common Stock held by such withdrawn registration)Shareholders; provided, however, that ifany 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 the Registrable Securities who requested the registration (if the offering is not underwritten), after it has become effectivedetermine(s) in good faith that the inclusion of such shares will interfere with the successful marketing of the shares of the Registrable Securities to be included in the registration. If a requested registration involves an underwritten public offering and the managing underwriter of such offering determines in good faith that the number of securities sought to be offered should be limited due to market conditions, an then the number of securities to be included in such underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter, provided that the shares to be excluded shall be determined in the following order of priority: (i) securities held by any other Persons (other than the Shareholders and holders of Registrable Securities) having a contractual, incidental "piggy back" right to include such securities in the registration statement, (ii) securities held by the Shareholders, (iii) securities offered on behalf of the Company, (iv) Registrable Securities of holders who did not make the original request for registration and, if necessary, (v) Registrable Securities of holders who requested such registration pursuant to Section 2. If there is a reduction of the number of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtclauses (iv) and (v), such registration will reduction shall be deemed not to have been effected and will not count as made on a Demand Registrationpro rata basis (based upon the aggregate number of Registrable Securities held by such holders).
(d) Requesting Holders can request Whenever a “firm commitment” requested registration pursuant to Section 2(a) is for an underwritten offering. If a Demand Registration is a “firm commitment” underwritten public offering, the Requesting Holders Company shall have the right to approve the managing underwriter chosen by the holders of a majority of the Registrable Securities to be registered sold 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, offering (which consent shall approval will not be unreasonably withheldwithheld or delayed). No Person The Company may participate in 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration2.
(e) No securities to be sold for If, at the account time of any Person request to register Registrable Securities pursuant to Section 2(a), the Company is preparing a registration statement for a public offering (including the Company) other than a Requesting Holder shall be included in registration effected solely to implement an employee benefit plan or a Demand Registration transaction to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success which Rule 145 of the offering Commission is applicable) which in fact is filed and becomes effective within ninety (90) days after the request, or is engaged in any activity (including a “Material Adverse Effect”). Furthermoreconcurrent or proposed security issuance or acquisition) which, 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt good faith determination of the Company’s notice's board of directors, would be adversely affected by the requested registration to elect to include in such Demand Registration such portion the material detriment of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company, then the Company may defer at is option direct that such request be delayed for a period (the filing (but "Black-Out Period") not the preparation) in excess of a registration statement required by Section 4.01(a) until a date not later than 90 120 days after the Required Filing Date (or, if longer, 90 days after from the effective date of such offering or the registration statement contemplated by clause (ii) below) if (i) at date of commencement of such other activity, as the time the Company receives the Demand Request, the Company or case may be. The aggregate amount of Black-Out Periods in any of its Subsidiaries are engaged consecutive twelve month period shall not exceed 120 days. Nothing 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 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 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 4.01(g2(e) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case prelude a holder 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for from enjoying registration rights which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this it might otherwise possess under Section 4.01(g) only once4 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Preferred Payment Systems Inc)
Demand Registration. (ai) Any Investor may requestHolder or group of Holders that holds at least 3,329,479 of the Registrable Securities (as adjusted in each case to reflect splits, in writing combinations, dividends and recapitalizations) (the “Initiating Holder”) that desires to sell shall have the option and right, exercisable by delivering a written notice to the Partnership (a “Demand RequestNotice”), that to require the Company effect Partnership to, pursuant to the registration under terms of and subject to the Securities Act limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering the offering and sale of all or part the number and type of its or their 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, which may include sales on a delayed or continuous basis pursuant to Rule 415 (a the “Demand Registration”).
(ii) Within two (2) Trading Days of the receipt of the Demand Notice, the Partnership shall give written notice of such Demand Notice to all Holders and shall, subject to the limitations of this Section 2(a), file a Registration Statement covering all of the Registrable Securities that the Holders shall in writing request (such request to be given to the Partnership within three (3) days of receipt of such notice of the Demand Notice given by the Partnership pursuant to this Section 2(a)(ii)) to be included in such Demand Registration as promptly as practicable as directed by the Initiating Holder in accordance with the terms and conditions of the Demand Notice and use all commercially reasonable efforts to cause such Registration Statement to become effective under the Securities Act and remain effective under the Securities Act for not less than six (6) months following the Effective Date or such shorter period when all Registrable Securities covered by such Registration Statement have been sold (the “Effectiveness Period”); provided, however, (i) that the Partnership shall not be required to effect the registration of Registrable Securities pursuant to this Section 2(a) unless at least an aggregate of 3,329,479 of the Registrable Securities (as adjusted in each case to reflect splits, combinations, dividends and recapitalizations) are offered or the Registrable Securities are offered at an aggregate proposed offering price of not less than $25 million and (ii) the Effectiveness Period shall be extended by one (1) day for each additional day during any Suspension Period in effect following the Effective Date applicable thereto pursuant to Section 2(a)(iv).
(iii) Subject to the other limitations contained in this Agreement, the Partnership is not obligated hereunder to effect more than (A) one (1) Demand Registration in any twelve (12) month period and (B) a total of four (4) Demand Registrations pursuant to this Agreement; provided however, that if Section 7.12 of the LP Agreement is amended and NGP VIII and/or any of its Affiliates had registration rights under such section immediately prior to such amendment, then the total number of Demand Registrations pursuant to this Agreement shall be increased to seven (7) less any demand registrations effected on behalf of NGP VIII and/or any of its Affiliates pursuant to Section 7.12(a) or (b) of the LP Agreement.
(iv) Notwithstanding any other provision of this Section 2(a), the Partnership shall not be required to: (A) file a Registration Statement pursuant to this Section 2(a) during the period starting with the date thirty (30) days prior to a good faith estimate by the General Partner, of the date of filing of, and ending on a date ninety (90) days after the effective date of, a Partnership initiated registration; provided that the Partnership is actively employing commercially reasonable efforts to cause such registration statement to become effective; (B) effect a registration or file a Registration Statement for a period of up to one hundred twenty (120) days after the date of a Demand Notice for registration pursuant to this Section 2(a) if at the time of such request (1) the Partnership is engaged, or has plans to engage, within thirty (30) days of the time of such Demand Notice, in a firm commitment underwritten public offering of Common Units), or (2) the Partnership is currently engaged in a self-tender or exchange offer and the filing of a Registration Statement would cause a violation of the Exchange Act; or (C) effect a registration or file a Registration Statement for a period of up to ninety (90) days, if (1) the General Partner determines that a postponement is in the best interest of the Partnership and its Limited Partners generally due to a pending transaction involving the Partnership, (2) the General Partner determines such registration would render the Partnership unable to comply with applicable securities laws or (3) the General Partner determines such registration would require premature disclosure of material information that the Partnership has a bona fide business purpose for preserving as confidential (any such period, a “Suspension Period”); provided, however, that (i) in no event shall the Partnership postpone or defer any Demand Registration pursuant to this Section 2(a)(iv) and/or Section 7(g) for more than an aggregate of one hundred twenty (120) days in any twelve (12) month period, (ii) in the event the Partnership postpones or defers any Demand Registration pursuant to Section 2(a)(iv)(C)(2) or (3), then during such Suspension Period, the Partnership shall not engage in any transaction involving the offer, issuance, sale, or purchase of Partnership Securities (whether for the benefit of the Partnership or a third Person), except transactions involving the issuance or purchase of Partnership Securities as contemplated by Partnership employee benefit plans or employee or director arrangements or the Warrants, and (iii) in the event the Partnership postpones or defers any Demand Registration pursuant to Section 2(a)(iv)(C)(1), then during such Suspension Period, the Partnership shall (to the extent it has the contractual right) not permit any other holder of registration rights to effect a registration or file a registration statement.
(v) Notwithstanding any other provision of this Section 2(a), if (A) the Holders intend to distribute the Registrable Securities covered by a Demand Registration by means of an underwriting and (B) the managing underwriter advises the Partnership that the inclusion of all of the Holders’ Registrable Securities in the subject Registration Statement would likely have an adverse effect in any material respect on the price, timing or distribution of the Partnership Securities proposed to be included in such offering or the market for the Common Units, then the Partnership shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall, subject to any preferential rights to be included pursuant to the Pre-Existing Rights, be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). Notwithstanding Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the foregoingregistration. In the event that the managing underwriter limits the number of Registrable Securities to be included in the Registration Statement pursuant to this Section 2(a)(v), no unless at least the lesser of 80% of the aggregate Registrable Securities set forth in such Holders’ written requests pursuant to Section 2(a)(ii) and 8,323,696 Registrable Securities are included in the subject Registration Statement, such Demand Request will Registration shall not be effective hereunder unless considered for purposes of the limitations set forth in Section 2(a)(iii).
(vi) The Partnership may include in any such Demand Registration other Partnership Securities for sale for its own account or for the account of any other Person; provided that if the managing underwriter for the offering determines that the number of Partnership Securities proposed to be offered in such offering would likely have an adverse effect in any material respect on the price, timing or distribution of the Partnership Securities proposed to be included in such offering or the market for the Common Units, then, subject to any Pre-Existing Rights, the Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, be included in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable such registration before any Partnership Securities proposed to be sold. Subject to Section 4.01(g), sold for the Company shall file a registration statement under account of the Securities Act to effect the Demand Registration as promptly as possible and in Partnership or any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationother Person.
(cvii) A registration will not count as a Subject to the limitations contained in this Agreement, the Partnership shall effect any Demand Registration until it has become effective on Form S-3 (unless except if the Requesting Holders withdraw all their Partnership is not then eligible to register for resale the Registrable Securities and the Company has performed its obligations hereunder in all material respectson Form S-3, in which case such demand will count as Demand Registration shall be effected on another appropriate form for such purpose pursuant to the Securities Act) and if the Partnership becomes, and is at the time of its receipt of a Demand Notice, a WKSI, the Demand Registration unless for any offering and selling of Registrable Securities through a firm commitment underwriting shall be effected pursuant to an Automatic Shelf Registration Statement, which shall be on Form S-3 or any equivalent or successor form under the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registrationSecurities Act (if available to the Partnership); provided, however, that if, after if at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to the Partnership that it has become effective, intends to effect an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction all or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority part of the Registrable Securities included on such Registration Statement, the Partnership will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(viii) Without limiting Section 3, in connection with any Demand Registration pursuant to and in accordance with this Section 2(a), the Partnership shall, (A) promptly prepare and file or cause to be registered in a Demand Registration shall select 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 investment banking firm or firms to manage the underwritten offering, provided that such selection shall be securities subject to the consent of the Companysuch Demand Registration, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 including under the terms securities laws of such underwriting arrangementsstates as the Holders shall reasonably request; provided, however, that no such Person qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to make any representations general service of process or warranties to taxation or qualification to do business in connection with any such jurisdiction solely as a result of registration other than representations and warranties as to (A2) such Person’s ownership of his forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or its to list the Registrable Securities subject to be transferred free such Demand Registration on the Trading Market and clear of all liens, claims and encumbrances, (B) do any and all other acts and things that may be necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Person’s power Registrable Securities in accordance with the intended timing and authority to effect method or methods of distribution thereof.
(ix) In the event a Holder transfers Registrable Securities included on a Registration Statement and such transfer and (C) Registrable Securities remain Registrable Securities following such matters pertaining to compliance with securities laws transfer, at the request of such Holder, the Partnership shall amend or supplement such Registration Statement as may be reasonably requested; provided, further, however, that the obligation of necessary in order to enable such Person transferee to indemnify pursuant to any offer and sell such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities Registration Statement; provided that in no event shall the Partnership be required to be sold for the account of any Person (including the Company) other than file a Requesting Holder shall be included in a Demand Registration post-effective amendment to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of Registration Statement unless (A) such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Statement includes only Registrable Securities held by the Requesting Holders and Holder, Affiliates of the Holder or transferees of the Holder or (B) the Partnership has received a written consent therefor from every Person 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 whom Partnership Securities have been made for all purposes registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of this Agreement. The Company may defer the filing Holder or transferees of a particular registration statement pursuant to this Section 4.01(g) only oncethe Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Eagle Rock Energy Partners L P)
Demand Registration. (ai) Any Investor may requestUpon each notice to the Company by the ▇▇▇▇▇▇ Holders, IronBrand or the 1818/Progressive/ML Holders requesting the registration of a specified number of their Registrable Securities, the Company shall, as promptly as practicable and in any event not later than 90 days after the Company's receipt of such notice, prepare and file with the Commission under the Securities Act a Registration Statement (including by means of a shelf registration pursuant to Rule 415 under the Securities Act (a "Shelf Registration Statement") if so requested in such notice (but, in writing the case of a shelf registration, only if the Company is then eligible to use such a shelf registration and if Form S-2 or Form S-3 (or any successor forms) is then available to the Company) with respect to the Registrable Securities to which such notice relates, and shall use its reasonable best efforts to cause such Registration Statement to be declared effective at the earliest practicable date and to prepare and make available a “Demand Request”Prospectus meeting the requirements of Section 10(a) of the Securities Act and providing for the method of disposition determined pursuant to Section 1(a)(ii) for such period as may be required by the Securities Act, but in no event beyond the period specified in Section 1(a)(iii); provided, that the Company will not be required to effect any such registration within the registration under period beginning on the Securities Act effective date of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold Registration Statement filed by the Holders requesting Company on its behalf or for the Demand Registration account of any other Person covering a firm commitment Underwritten Offering and ending on the later of (A) 90 days after such effective date and (B) the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representexpiration of any lock-up period required by the underwriters, if any, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be soldconnection therewith. Subject to Section 4.01(g1(a)(iii) below, each of the ▇▇▇▇▇▇ Holders, the 1818/Progressive/ML Holders and IronBrand may make two requests for registration pursuant to this Section 1(a)(i); provided that the number of such permissible requests shall be increased as set forth in Sections 1(c)(ii)(A) and 1(c)(iv) and provided no such holders shall be entitled to make such a request while any other Registration Statement (other than a Shelf Registration Statement) with the Commission is on file prior to its becoming effective or within 90 days after such a Registration Statement has been declared effective or in the case of a Shelf Registration Statement while such registration is on file prior to being declared effective until 90 days after such Registration Statement ceases to be effective.
(ii) If a request for registration is made pursuant to Section 1(a)(i), the Company shall file a registration statement under promptly give written notice of such request to all Demand Holders who did not participate in such request; and each Demand Holders Group shall have the Securities Act right, subject to effect Section 1(a)(iii), by giving written notice to the Demand Registration as Company promptly as possible (and in any event within 90 30 days after receiving a Demand Request (such notice is given by the “Required Filing Date”) Company), to join in such request and shall use all commercially reasonable efforts to cause have included in the same Registration Statement to be declared effective filed by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders such request such number of Registrable Securities as such holders shall specify in such notice; and the method of distribution of the Registrable Securities to be included in such Registration Statement under Section 1(a)(i) shall be selected by the holders of a majority of the Registrable Securities with respect to which the request for registration was made under Section 1(a)(i);
(iii) any Demand Holder Group which shall have given the Company a notice pursuant to Section 4.01(a); provided, further, that if any Registrable Securities 1(a)(i) above and all of whose shares requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders included shall have been included in the right, Registration Statement at the time it is declared effective shall not be deemed to have used one of its requests for registration (A) unless the Registration Statement with respect thereto has become effective and remained effective in compliance with the provisions of the Securities Act with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw disposition of all their Registrable Securities and covered by such Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the Company has performed its obligations hereunder intended methods of disposition by the seller or sellers thereof set forth in all material respectssuch Registration Statement; PROVIDED, in which case THAT, such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expensesperiod need not exceed 180 days, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, (B) if after it has become effective, an offering of Registrable Securities pursuant to a such registration is interfered with by any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or courtcourt for any reason not attributable to the Demand Holders and has not thereafter become effective, or (C) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration will be deemed are not to have been effected and will not count as satisfied or waived, other than by reason of a failure on the part of the Demand RegistrationHolders.
(div) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, The Company may delay the Requesting Holders filing of a majority Registration Statement requested pursuant to this Section 1(a) if, in its reasonable judgment, (A) the filing of such Registration Statement at such time would adversely affect or require the Registrable Securities Company to be registered disclose in the Registration Statement a Demand Registration shall select the investment banking firm proposed financing, reorganization or firms recapitalization, or pending negotiations relating to manage the underwritten offeringa merger, provided that such selection shall be subject to the consent of consolidation, acquisition or similar transaction, or otherwise adversely affect the Company, which consent shall ; or (B) financial statements meeting the requirements of Regulation S-X are not be unreasonably withheld. No Person may participate in available at such time because of any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 arrangementspending proposal or negotiations; provided, however, that no such Person shall be required the right of the Company pursuant to make any representations or warranties in connection with any such registration other than representations and warranties as to clauses (A) such Person’s ownership of his or its Registrable Securities to be transferred free and clear of all liens, claims and encumbrances, (B) such Person’s power and authority of this subsection (iv) to effect such transfer and (C) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, delay the filing of a Registration Statement shall not extend for more than 90 days from the date that the obligation of such Person to indemnify notice is given pursuant to any such underwriting arrangements Section 1(a)(i) requesting registration. The Company shall be several, not joint and several, among such Persons selling Registrable Securities, and promptly give the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 holders of Registrable Securities proposed requesting registration thereof pursuant to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(fSections 1(a)(1) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 daysor 1(a)(ii) give written notice of such proposed Demand Registration to all other Investorsdetermination, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) and containing a general statement of the reason reasons for such deferral postponement and an approximation of the anticipated delay. Within 20 days after receiving such certificate, If the holders of a majority of the Registrable Securities 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 Company shall be deemed not to have been made for all purposes of this Agreement. The Company may defer so postpone the filing of a particular Registration Statement, any Demand Holder Group requesting registration statement thereof pursuant to this Section 4.01(g1(a)(i) only onceshall have the right to withdraw the request for registration by giving written notice to the Company within 15 days after receipt of the notice of postponement and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which holders of Registrable Securities are entitled pursuant to Section 1(a) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (1818 Fund Lp Brown Brothers Harriman Co Long T Michael Et Al)
Demand Registration. (a) Any Investor may requestIf the Company will receive from the Initiating Holders at any time after the earlier of (i) the third anniversary of the Second Closing Date or (ii) six (6) months after the effective date of the first registration statement filed by the Company covering an underwritten offering of any of its securities to the general public, in writing (a “Demand Request”), written request that the Company effect the any registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities with respect to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify such Initiating Holders such that the number of aggregate offering price to the public for the Registrable Securities proposed to offered would not be sold. Subject to Section 4.01(gless than Seventy-Five Million Dollars ($75,000,000.00), the Company shall file a will:
(i) promptly give written notice of the proposed registration statement to all other Holders; and
(ii) subject to Section 1.3(b), as soon as practicable, use its best efforts to effect such registration within ninety (90) days of the date of such notice in Section 1.3(a)(i) above (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and appropriate compliance with the Securities Act Act) as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request received by the Company within twenty (20) days after such written notice from the Company is mailed or delivered. The Company will not be obligated to effect the Demand Registration as promptly as possible and effect, or to take any action to effect, any such registration pursuant to this Section 1.3:
(A) in any event within 90 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;
(B) after the Company has initiated two (2) such registrations pursuant to Section 1.3(a) (counting for these purposes only registrations which have been declared or ordered effective and registrations which have been withdrawn by the Holders as to which the Holders have not elected to bear all the Registration Expenses relating to such registration);
(C) during the period starting with the date ninety (90) days prior to the Company’s good faith estimate of the date of filing, and ending on a date one hundred eighty (180) days after receiving the effective date, of a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingCompany-initiated registration; provided, however, that the Company need effect only two is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; and provided further that the Company uses commercially reasonable efforts to give notice to all Holders upon commencement of such period (2and in any event, no later than thirty (30) Demand Registrations pursuant days from the date the Company receives a registration request from Initiating Holders as provided for in Section 1.3(a));
(D) if the Initiating Holders propose to Demand Requests made by Holders dispose of shares of Registrable Securities which may be immediately registered on Form S-3 pursuant to a request made under Section 4.01(a1.5 hereof. In the event that a withdrawal of a registration by the Holders is based upon material adverse information relating to the Company that is different from the information made available (upon request from the Company or otherwise) to the Holders requesting registration at the time of their request for registration under this Section 1.3, such registration will not be treated as a counted registration for purposes of this Section 1.3 hereof.
(b) Subject to the foregoing clauses (A) through (D); provided, further, that if any the Company will file a registration statement covering the Registrable Securities so requested to be registered pursuant to a Demand Request are excluded from as soon as practicable after receipt of the applicable Demand Registration pursuant to Section 4.01(e) below, request or requests of the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration)Initiating Holders; provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement if (i) in the good faith judgment of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders Board of a majority of the Registrable Securities 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 Directors of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 had determined to effect a registered underwritten public offering of Directors of the Company’s Securities for the Company’s account and the Company had taken substantial steps (includingconcludes, but not limited toas a result, selecting a managing underwriter for such offering) and that it is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order essential to defer the filing of a such registration statement pursuant to this Section 4.01(g)at such time, and (ii) the Company shall promptly (but in any event within ten days), upon determining will furnish to seek such deferral, deliver to each Requesting Holder Holders a certificate signed by an executive officer the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company is deferring for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company will have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders, and, provided further, that the Company will not defer its obligation in this manner more than once in any rolling twelve (12) month period. The registration statement filed pursuant to the request of the Initiating Holders may, subject to the provisions of Sections 1.3(b), 1.3(d), and 1.3(e) hereof, include other securities of the Company, with respect to which registration rights have been granted and may include securities of the Company being sold for the account of the Company.
(c) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 4.01(g) 1.3, and a general statement of the reason for Company shall include such deferral and an approximation of information in the anticipated delaywritten notice given pursuant to Section 1.3(a)(i). Within 20 days after receiving In such certificateevent, the holders right of a majority any Holder to include all or any portion of the its Registrable Securities held by the Requesting Holders and for which in such registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g1.3 shall be conditioned upon such Holder’s participation in an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein.
(d) only onceIf the Company will request inclusion in any registration pursuant to Section 1.3 of securities being sold for its own account, or if other persons will request inclusion in any registration pursuant to Section 1.3, the Initiating Holders will, on behalf of all Holders, offer to include such securities in the underwriting and may condition such offer on their acceptance of the further applicable provisions of this Section 1. The Company will (together with all Holders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Initiating Holders, to which the Company has reasonably consented.
(e) Notwithstanding any other provision of this Section 1.3, if the representative of the underwriters advises the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of shares to be included in the underwriting or registration will be allocated as set forth in Section 1.14 hereof. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person will be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded will also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting will also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 1.3(e), then the Company will offer to all Holders who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion in accordance with Section 1.14.
Appears in 1 contract
Sources: Registration Rights Agreement (Regado Biosciences Inc)
Demand Registration. (a) Any Investor may Subject to the restrictions set forth below, if at any time after the Closing (as defined in the Purchase Agreement), the Company shall receive from Holders a written request to register at least fifty percent (50%) of the Registrable Securities owned by the Holders on a collective basis (or their respective successors and permitted assigns) as of the date of such request, in writing (a “Demand Request”), that then the Company shall effect as soon thereafter as practicable the registration Registration under the Securities Act of all or part of its or their Registrable Securities which any Holder requests to be registered. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to this Section 2.01 during the period starting with the date sixty (60) days prior to the Company's good faith estimate of the date of filing of, and ending on a “Demand date one hundred eighty (180) days after the effective date of, a Company-initiated Registration”); provided that the Company has delivered notice of such Registration to the Holders prior to its receipt of the Holders' written request for a demand Registration, and it continues to actively employ in good faith all reasonable efforts to cause such Registration Statement to become effective. Notwithstanding Furthermore, the foregoingCompany shall not be required to effect more than one (1) Registration under this Section 2.01(a) on behalf of Holders; provided, no Demand Request will that (i) a Registration shall not be counted for such purposes unless such Registration has become effective hereunder unless and all of the proposed Registrable Securities to be sold registered on behalf of Holders have been sold, in accordance with Section 3.01(a) of this Agreement, and (ii) a Registration shall not count with respect to an Objecting Holder (as defined in Section 2.01(b) below). No Registration made by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” Company pursuant to this Section 4.01(f) hereof) representshall be an Underwritten Registration, unless the Board of Directors, in its sole discretion, determines that it is in the aggregate, more than 35% Company's best interest to combine such Registration with an Underwritten Offering of the total number Common Stock that is to be made on behalf of Registrable Securities held by all Holdersthe Company.
(b) Each Demand Request shall specify If the number Board of Directors authorizes the Company to include the Registrable Securities of the Holders in an Underwritten Offering, and any Holder of Registrable Securities proposed disapproves of the terms of the underwriting, then the Holder may elect to withdraw therefrom by written notice to the Company, the underwriters' representative and the other Holders delivered within three (3) business days of the Holder being provided the terms of the underwriting (any Holder delivering such notice being referred to herein as an "Objecting Holder"). The Registrable Securities so withdrawn will also be soldwithdrawn from the Registration Statement. Subject to Section 4.01(gIn the case of any such withdrawal by an Objecting Holder(s), the Company Objecting Holder(s) shall file a retain the right to request another registration statement of its shares under Section 2.01(a); provided, that the Securities Act to effect Objecting Holder(s) must wait until the Demand Registration as promptly as possible and in any event within 90 earlier of (i) ninety (90) days after receiving a Demand Request following the completion of the Underwritten Offering or (ii) the “Required Filing Date”) and shall use all commercially reasonable efforts to cause date on which the same to be declared effective Underwritten Offering is abandoned by the SEC Company, before exercising such demand right with respect to the registration of the Registrable Securities.
(orc) If the Holders decide to withdraw a demand after the Company commences preparation of a Registration Statement, if eligible, to become automatically effective) as promptly as practicable after such filingthen the Holders will pay the Registration Expenses incurred in connection with the Registration Statement and will no longer have demand registration rights under this Section 2.01; provided, however, that the Company need effect only two (2) Demand Registrations pursuant Holders will not be required to Demand Requests made by pay the Registration Expenses and the Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested will continue to be registered pursuant entitled to a Demand Request are excluded from exercise its demand registration rights under Section 2.01 if the applicable Demand Registration pursuant to Section 4.01(ewithdrawal results within five (5) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement business days of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, discovery by the Requesting Holders of a majority fact that has or could reasonably be expected to have a Material Adverse Effect (as defined in the Purchase Agreement) or that could reasonably be expected to materially impair the value of the Registrable Securities or the ability to be registered in a Demand Registration shall select consummate the investment banking firm or firms to manage the underwritten offering, provided proposed offering and that such selection shall be subject was not known to the consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncerequest.
Appears in 1 contract
Demand Registration. (a) Any Investor At any time after November 6, 1999, the Purchaser Representative may request, in writing (at any time and from time to time make a “Demand Request”), that the Company effect the written request for registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more not less than 3520% of the total number of Registrable Securities held owned by all Holders.
the Purchaser Group (ba "Demand Registration"); provided that Trico shall not be obligated to effect more than an aggregate of three (3) Each Demand Request shall Registrations pursuant to this Section 5.1(a). Such request will specify the number of shares of Registrable Securities proposed to be soldsold and will also specify the intended method of disposition thereof. Subject to Section 4.01(g)Notwithstanding the foregoing, the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders Trico shall have the right, with respect to each such exclusionbut no more frequently than once in any consecutive twelve-month period, to request one additional Demand Registration.
be excused from its obligation to effect a registration pursuant to this Section 5.1(a) during any period within such twelve-month period starting with a date sixty (c60) days prior to Trico's estimated date of filing of, and ending on a date six (6) months following the effective date of, a registration statement pertaining to an underwritten public offering of securities for the account of Trico; provided that Trico is actively employing in good faith all reasonable best efforts to cause such registration statement to become effective and that Trico's estimate of the date of filing of such registration statement is made in good faith. A registration will not count as a Demand Registration until it has become effective; provided, however, that a Demand Registration that is either withdrawn or not declared effective (unless at the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will Purchaser Representative's request shall count as a Demand Registration unless the Requesting Holders pay Participating Purchasers also bear all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, expenses specified in Section 5.6 hereof (including those otherwise payable by Trico) with respect to such registration will be deemed not to have been effected and will not count as a Demand Registration.
(db) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offeringthe Purchaser Representative so elects, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 offering 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case form 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreementunderwritten offering. The Company may defer shall select the filing of a particular registration statement pursuant managing underwriters and any additional investment bankers and managers to this Section 4.01(g) only oncebe used in connection with the offering; provided that such managing underwriters and additional investment bankers must be reasonably satisfactory to the Purchaser Representative.
Appears in 1 contract
Sources: Stockholders' Agreement (Inverness Phoenix Partners Lp)
Demand Registration. (ai) Any Investor may request, in writing At any time and from time to time after a Public Reporting Event upon written notice to the Corporation (a “Demand RequestNotice”), ) delivered by Demanding Holders requesting that the Company Corporation effect the registration under the Securities Act of all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities other than pursuant to a registration is interfered with by statement on Form S-4 or Form S-8 or any stop order, injunction similar or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 successor form 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 (ASecurities Act) such Person’s ownership of his or its Registrable Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw Demanding Holders, the Corporation shall promptly (but in any event, not later than five (5) Business Days following the Corporation’s receipt of such Demand Request by giving Notice) give written notice of the receipt of such Demand Notice to all other Restricted Holders that, to the Company; if withdrawnCorporation’s knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Corporation shall, within thirty (30) 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 7(a) or under Section 7(b)), file the appropriate Registration Statement (the “Demand Registration Statement”), subject to Section 7(a)(ii), and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration under the Securities Act and under the applicable state securities laws of (A) the Registrable Securities requested to be registered by the Demanding Holders in the Demand Request shall Notice, (B) all other Registrable Securities of the same class or series as those requested to be deemed not registered by the Demanding Holders requested to have been made for be registered by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Corporation within ten (10) days following the receipt of such Demand Notice, and (C) any securities of the same class or series to be offered and sold by the Corporation, in each case subject to Section 7(a)(ii), all purposes to the extent required to permit the disposition (in accordance with the intended methods of this Agreementdisposition) of the Registrable Securities to be so registered. The Company may defer the filing of a particular registration statement pursuant to Notwithstanding anything in this Section 4.01(g7 to the contrary, the Corporation shall not be obligated to effect more than two (2) only onceDemand Registrations in any six (6)-month period.
Appears in 1 contract
Sources: Stockholders’ Agreement (Endo, Inc.)
Demand Registration. 2.2.1 If Chautauqua shall receive a written request from AWA that Chautauqua file a registration statement under the Securities Act of 1933, as amended (a) Any Investor may request, in writing (a “Demand Request”the "Securities Act"), that covering the Company registration of at least a majority of the Warrant Shares then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed five million dollars ($5,000,000)), then Chautauqua shall expeditiously effect the registration under the Securities Act of all or shares of Common Stock (including any Warrant Shares) that AWA has requested to be registered (the "Registrable Securities").
2.2.2 If AWA intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise Chautauqua as a part of its request made pursuant to this Section 2.2 and Chautauqua shall enter into an underwriting agreement in customary form with the underwriter or their Registrable Securities underwriters selected for such underwriting by AWA (a “Demand Registration”which underwriter or underwriters shall be reasonably acceptable to Chautauqua). Notwithstanding any other provision of this Section 2.2, if the foregoing, no Demand Request will be effective hereunder unless underwriter advises Chautauqua that marketing factors require a limitation of the proposed Registrable Securities number of securities to be sold by the Holders requesting the Demand Registration underwritten (the “Requesting Holders,” which term including Registrable Securities) then Chautauqua shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representso advise AWA, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify and the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters underwriting shall advise the Company or the Requesting Holders in writing that the inclusion be allocated among AWA, Chautauqua and any other stockholders including shares of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included Common Stock in such Demand Registration by Requesting Holders is sufficiently large to cause registration on a Material Adverse Effect, the Registrable Securities of the Requesting Holders to be included in such Demand Registration shall equal PRO RATA basis based on the number of shares which of Common Stock held by all such holders.
2.2.3 The Company shall not be required to effect a registration pursuant to this Section 2.2:
(a) prior to 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 earlier of (i) the Requesting Holders on the basis third anniversary of the number of Registrable Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes date of this Section 4.01(f).
Agreement or (gii) The Company may defer the filing one hundred eighty (but not the preparation180) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after following the effective date of the registration statement contemplated by clause pertaining to the IPO; and
(iib) below) if (i) at the time after 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 has effected one registration statement (but would not be required if such registration statement were not filed), and the Board 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 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 4.01(g) shall be lifted2.2, and the requested such registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the negotiations has been declared or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.ordered effective;
Appears in 1 contract
Sources: Warrant Issuance Agreement (Republic Airways Holdings Inc)
Demand Registration. (a) Any Investor may requestSubject to the terms of this Agreement, in writing (a “Demand Request”), the event that the Company effect shall, not sooner than the registration under second (2nd) anniversary of the Securities Act date of all this Agreement, and not later than the fifth (5th) anniversary of the date of this Agreement, receive from the Holders, or part any subset of its them, a written notice that it or their they intend to offer or cause to be offered for public sale Registrable Securities at an aggregate offering price to the public of not less than Five Million Dollars (a “Demand Registration”$5,000,000.00). Notwithstanding , the foregoingCompany will so notify DMRFS, no Demand Request will be effective hereunder unless DMR or the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration Shareholder Representative (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, as defined in the aggregateReorganization Agreement), more than 35% of and DMRFS, DMR or the total number of Registrable Securities held by Shareholder Representative, as the case may be, shall so notify all Holders.
(b) Each Demand Request shall specify Subject to the number terms of this Agreement, in the event that the Company shall, not sooner than the fifty (5th) anniversary of the date of this Agreement, and not later than the seventh (7th) anniversary of the date of this Agreement, receive from the Holders, or any subset of them, a written notice that it or they intend to offer or cause to be offered for public sale Registrable Securities proposed at an aggregate offering price to be sold. Subject to Section 4.01(gthe public of not less than Five Million Dollars ($5,000,000.00), the Company will so notify DMRFS, DMR or the Shareholder Representative (as defined in the Reorganization Agreement), and DMRFS, DMR or the Shareholder Representative, as the case may be, shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in so notify all Holders.
(c) Upon written request of any event Holder given within 90 eighteen (18) days after receiving the receipt by DMRFS, DMR or the Shareholder Representative, as is appropriate, from the Company, of a Demand Request (notification pursuant to Section 3.3(a) or 3.3(b) above, the “Required Filing Date”) and shall Company will use all commercially reasonable efforts to cause such of the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant as may be requested by any Holder (including the Holder giving the initial notice of intent to Section 4.01(a); provided, further, that if any Registrable Securities requested offer) to be registered pursuant under the Act as expeditiously as possible (a "Demand Registration"). The Company shall not be required to a Demand Request are excluded from the applicable effect more than one (1) Demand Registration pursuant to Section 4.01(e3.3(a) belowabove, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a shall not be required to effect more than one (1) Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand RegistrationSection 3.3(b) above.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If (i) in the good faith judgment of the Board, a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 had determined to effect concludes, as a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (includingresult, but not limited to, selecting a managing underwriter for such offering) and that it is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order essential to defer the filing of a such registration statement at such time, and (ii) the Company shall furnish to DMRFS, DMR or the Shareholder Representative, as is appropriate, a certificate signed by the President of the Company stating that, in the good faith judgment of the Board, it would be materially detrimental to the Company for such registration statement to be filed in the near future, then the Company shall have the right to defer such filing for the period during which such Demand Registration would be materially detrimental, provided that the Company may not defer the filing for a period of more than ninety (90) days after receipt of the request for a Demand Registration, and more than once in any 12-month period.
(e) In the case of any registration, filing or qualification of Registrable Securities pursuant to this Section 4.01(g)3.3, DMRFS or the Company Shareholder Representative, as the case may be, shall promptly (but in any event within ten days)be responsible for sending all notifications to the Holders, upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer and for obtaining the signatures of the Company stating that Holders to all documents required to be delivered by the Company is deferring such filing Holders pursuant to this Section 4.01(g) Agreement in connection with such registration, filing or qualification, and a general statement all costs and expenses associated with sending such notices or obtaining such signatures, any provision 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice this Agreement to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only oncecontrary notwithstanding.
Appears in 1 contract
Sources: Shareholders Agreement (Bingham Financial Services Corp)
Demand Registration. (a) Any Investor may request, in writing (In case the Company shall receive from Initiating ------------------- Holders a “Demand Request”), written request that the Company effect the a registration under the Securities Act with respect to at least 200,000 shares of all or part of its or their Common Stock that constitute Registrable Securities (a “Demand Registration”). Notwithstanding as adjusted for stock splits, stock dividends, recapitalizations and similar events) the foregoing, no Demand Request will be effective hereunder unless Company will:
(a) promptly give written notice of the proposed Registrable Securities registration to be sold all other Holders so they may have an opportunity to consider joining in such registration, which they may do (subject to the terms and provisions of this Agreement) at their election within ten (10) days after receipt of the notice of the proposed registration by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.Company; and
(b) Each Demand Request shall specify as soon as practicable, use its reasonable best efforts to effect such registration (including, without limitation, the number execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities proposed 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 given within ten (10) days after receipt of notice from the Company pursuant to Section 2(a); 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:
(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) Prior to the date which is one (1) year following the effective date of the registration statement relating to an Initial Public Offering;
(iii) Within the one hundred twenty (120) day period immediately following the effective date of a registration statement pertaining to a public offering of Common Stock for its own account or for the account of another shareholder of the Company who has exercised a demand right to register shares of Common Stock (other than a registration relating solely to a Commission Rule 145 transaction or a registration relating solely to employee benefit plans);
(iv) After the Company has effected one (1) registration pursuant to this Section 2 and such registration has been declared or ordered effective; or
(v) If the Company furnishes to the Initiating Holders a letter signed by the Chief Executive Officer or the President of the Company stating that the Company intends to file a registration statement in connection with a bona fide firm commitment underwritten registration for securities to be soldoffered for its own account (the "Intended Registration"); provided, however, that if -------- ------- the Company does not file with the Commission its Intended Registration within ninety (90) days of the request of the Initiating Holders, the Company shall file the requested registration statement within thirty (30) days of the termination of such ninety (90) day period. Subject to Section 4.01(gthe foregoing clauses (i) through (v), the Company shall file a registration statement under covering the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities so requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count soon as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, practicable after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date request 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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceInitiating Holders.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time prior to such time as the rights under this Section 2 terminate with respect to a Holder as provided in Section 2(a)(iii) hereof, upon written notice from such Holder in writing (a “Demand Request”), the manner set forth in Section 11(i) hereof requesting that the Company effect the registration under the Securities Act of any or all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request such Holder or any of its Affiliates which notice shall specify the number intended method or methods of disposition of such Registrable Securities, the Company shall use its best efforts to effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities proposed for disposition in accordance with the intended method or methods of disposition stated in such request (including (1) in an offering on a delayed or continuous basis under Rule 415 (or any successor rule of similar effect) promulgated under the Securities Act and accordingly requiring the filing of a "shelf" registration statement and/or (2) sales for cash or dispositions upon exchange or conversion of securities or dispositions for any form of consideration or no consideration), provided that:
(i) if, while a registration request is pending pursuant to be sold. Subject to this Section 4.01(g2(a), the Company shall file determines, following consultation with and receiving advice from its legal counsel, that the filing of a registration statement under would require the Securities Act disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and the disclosure of which the Company determines reasonably and in good faith would have a material adverse effect on the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the Demand Registration as promptly as possible earlier of (A) the date upon which such material information is otherwise disclosed to the public or ceases to be material and in any event within 90 (B) 30 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (orCompany makes such determination, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two shall not be permitted to delay a requested registration in reliance on this clause (i) more than twice in any 12-month period;
(ii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2 within a period of 60 calendar days after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a); and
(iii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) in the case of a registration request by TTWF or any of its Affiliates, on more than five occasions after such time as TTWF and its Affiliates collectively own less than a majority of the then outstanding shares of Common Stock (it being acknowledged that so long as TTWF and its Affiliates collectively own a majority of the then outstanding shares of Common Stock, there shall be no limit to the number of occasions on which TTWF or its Affiliates may exercise their rights under this Section 2), or (B) in the case of a registration request by a Permitted Transferee or any of its Affiliates, on more than the number of occasions permitted such Holder in accordance with Section 10 hereof (it being acknowledged that (1) the exercise by such Permitted Transferee and its Affiliates of such rights shall not limit the number of occasions on which TTWF and its Affiliates may exercise their rights under this Section 2 and (2) Demand Registrations pursuant so long as such Permitted Transferee and its Affiliates collectively own a majority of the then outstanding shares of Common Stock, there shall be no limit to Demand Requests made by Holders the number of Registrable Securities pursuant to occasions on which such Permitted Transferee or its Affiliates may exercise their rights under this Section 4.01(a2); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(cb) 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 count as a Demand Registration until it has become effective be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (i) unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, registration statement filed in connection with such withdrawn registration); provided, however, that if, after it therewith has become effective, an offering of Registrable Securities pursuant (ii) if after such registration statement has become effective, it becomes subject to a registration is interfered with by any stop order, or there is issued an injunction or other order or requirement decree of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of the Registrable Securities so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected satisfied other than by reason of some act, misrepresentation or omission by a Holder and will are not count as a Demand Registrationwaived by the purchasers or underwriters.
(dc) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Requesting Holders of a majority Fair Market Value of the Registrable Securities to be registered in a Demand Registration connection with such offering shall select have the investment banking firm or firms right to manage designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering, provided that such selection .
(d) The Company shall be subject have the right to cause the consent registration of additional securities for sale for the account of any person (including the Company, which consent shall not be unreasonably withheld. No Person may participate ) in any registration of Registrable Securities requested by any Holder pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 arrangements2(a); 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that if the managing underwriter or underwriters shall advise other independent marketing agent for such offering (if any) determines that, in its opinion, the Company or the Requesting Holders in writing that the inclusion of such additional securities proposed to be sold will materially and adversely affect the price or success offering and sale of the offering Registrable Securities to be registered in accordance with the intended method or methods of disposition then contemplated by such Holder only the number or principal amount of such additional securities, if any (a “Material Adverse Effect”in excess of the number or principal amount of Registrable Securities). Furthermore, which, in the event the managing opinion of such underwriter or underwriters agent, can be so sold without materially and adversely affecting such offering 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large registration. The rights of a Holder to cause a Material Adverse Effect, the registration of additional Registrable Securities of the Requesting Holders to be included held by such Holder 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 any registration of Registrable Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 another Holder pursuant to this Section 4.01(g2(a) shall be lifted, and governed by the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) agreement of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, Holders with respect thereto as provided in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g10(a), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (Westlake Chemical Corp)
Demand Registration. (a) Any Investor may request2.1. Request for Registration on Form Other Than Form F-3. If a Qualified IPO has not occurred by December 31,2008, then, in writing (the event that the Company receives from any Holder at any time thereafter a “Demand Request”), written request that the Company effect any Registration with respect to at least thirty percent (30%) of the Registrable Securities then outstanding on a form other than Form F-3 (or any comparable form for a Registration for an offering in a jurisdiction other than the United States) (such Holder referred to as “Initiating Holder”), subject to the terms of this Agreement, the Company shall (i) within ten (10) days of receipt of such written request, give written notice of the proposed Registration to all other Holders and other shareholders of the Company with piggyback registration under rights (including, for the Securities Act avoidance of all or part doubt, the Company Shareholders), and (ii) as soon as practicable, use its best efforts to effect Registration of its or their those Registrable Securities (a “Demand Registration”). Notwithstanding ) which the foregoingCompany has been so requested to Register, no Demand Request will be effective hereunder unless the proposed together with all other Registrable Securities and securities of the Company other than the Registrable Securities which the Company has been requested to Register by holders thereof by written request given to the Company within ten (10) days after written notice from the Company, subject to limitations of this Section 2. The Company shall not be sold by the Holders requesting the Demand obligated to take any action to effect any Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to this Section 4.01(f2.1 (x) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g), after the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only has effected two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to this Section 4.01(a)2.1; provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from (y) after the applicable Demand Company has effected one Registration pursuant to this Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
2.1 during any nine (c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(e) No securities to be sold for the account of any Person (including the Company) 9)-month period other than a Requesting Holder shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, registration from which the Registrable Securities of the Requesting Holders have been excluded (with respect 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 all or any portion of the number of Registrable Securities Securities, the Holders requested to be included in such registration by each such Requesting Holder.
(fregistration) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice pursuant to the Company within 20 days provisions of their receipt Section 2.5(d) and 3.2(b); or (z) if the Initiating Holder proposes to dispose of the Company’s notice, to elect to include in such Demand Registration such portion shares of their Registrable Securities as they that may requestbe immediately Registered on Form F-3 pursuant to a request made pursuant to Section 2.2. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence The substantive provisions of Section 2.5 shall be deemed applicable to be “Requesting Holders” for purposes of the Registration initiated under this Section 4.01(f)2.1.
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (Camelot Information Systems Inc.)
Demand Registration. (ai) Any Investor may requestAfter the earlier of (x) December 29, 1998 or (y) the completion by the Company of the first underwritten public offering of Common Stock that is effected pursuant to a registration statement filed with, and declared effective by the SEC under the Securities Act, except as provided in writing (a “Demand Request”)Section 9(b)(ii) below, upon the written request of one or more Registering Mas Stockholders that the Company effect pursuant to this Agreement the registration of Registrable Securities under the Securities Act (which request shall specify the Registrable Securities so requested to be registered, the Proposed Amounts thereof and the intended method of disposition by the Registering Mas Stockholders), the Company will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of all the Proposed Amount of Registrable Securities, for disposition in accordance with the intended method of disposition stated in such request; PROVIDED, HOWEVER, that (A) if in the good faith judgment of the Board of Directors of the Company, such registration would be detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (B) the Company shall furnish to the Registering Mas Stockholders a certificate signed by an executive officer of the Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to defer the filing of such registration statement, then the Company shall have the right to defer such filing for the period during which such registration would be detrimental, provided that the Company may not defer the filing for a period of more than 180 days after receipt of the request of the Registering Mas Stockholders in the case of an underwritten public offering or part for more than 120 days if such method of disposition is not an underwritten public offering. The Company shall be entitled to include in any registration statement filed pursuant to this Section 9(b): (x) securities of the Company held by any other securities holder of the Company, and (y) in an underwritten public offering, securities of the Company to be sold by the Company for its or their Registrable Securities own account, except as and to the extent that (a “Demand Registration”1) in the written opinion of the managing underwriter, which shall be an underwriter of nationally recognized standing (if such method of disposition shall be an underwritten public offering). Notwithstanding , such inclusion would materially adversely affect the foregoing, no Demand Request will be effective hereunder unless marketing of the proposed Registrable Securities to be sold by the Holders requesting Registering Mas Stockholders or (2) in the Demand Registration written opinion of an investment banker of nationally recognized standing jointly selected by the Registering Mas Stockholder and the Company (if such method of disposition is not an underwritten public offering), such inclusion would materially adversely affect the “Requesting Holders,” price at which term the Registrable Securities may be sold pursuant to the plan of distribution.
(ii) The Company shall include parties deemed “Requesting Holders” not be obligated to take any action to effect any registration requested by the Registering Mas Stockholders pursuant to Section 4.01(f9(b)(i) hereofhereof (A) representafter the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, in (B) during the aggregate, more than 35% period starting with the date 30 days prior to the Company's estimate of the total number date of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify filing of, and ending on a date 180 days after the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)effective date of, a Company initiated registration, provided that the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use is using all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, such registration statement to become automatically effective, or (C) as promptly as practicable for a period of six (6) months after such filing; provided, however, that the Company need effect only two (2) Demand Registrations has effected one such registration pursuant to Demand Requests made by Holders of Registrable Securities pursuant this Agreement and such registration has been declared or ordered effective, such 180 day period to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from commence on the applicable Demand Registration pursuant to Section 4.01(e) below, date the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationregistration statement was declared or ordered effective.
(ciii) A Notwithstanding any other provision of this Agreement to the contrary, a registration will requested pursuant to this Section 9(b) shall not count as a Demand Registration until it has become effective be deemed to have been effected (A) unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto solely by reason of Registrable Securities pursuant the refusal of the Registering Mas Stockholders to a proceed shall be deemed to have been effected by the Company at the request of the Registering Mas Stockholders unless the Registering Mas Stockholders shall have elected to pay all Company Registration Expenses in connection with such registration, (B) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by the Registering Mas Stockholders, such registration will be deemed not or (C) if the conditions to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, closing specified in the Requesting Holders of a majority of the Registrable Securities to be registered in a Demand Registration shall select the investment banking firm purchase agreement 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 agreement entered into in connection with any such registration are not satisfied other than representations and warranties as to (A) such Person’s ownership by reason of his some wrongful act or its Registrable Securities to be transferred free and clear of all liensomission, claims and encumbrancesor act or omission in bad faith, (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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceRegistering Mas Stockholders.
Appears in 1 contract
Sources: Stockholders' Agreement (Neff Corp)
Demand Registration. (a) Any Investor may requestAt any time prior to such time as the rights under this Section 2 terminate with respect to a Holder as provided in Section 2(a)(iii) hereof, upon written notice from such Holder in writing (a “Demand Request”), the manner set forth in Section 12(i) hereof requesting that the Company effect the registration under the Securities Act of any or all or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request such Holder or any of its Affiliates which notice shall specify the number intended method or methods of disposition of such Registrable Securities, the Company shall use its best efforts to effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities proposed for disposition in accordance with the intended method or methods of disposition stated in such request (including (1) in an offering on a delayed or continuous basis under Rule 415 (or any successor rule of similar effect) promulgated under the Securities Act and accordingly requiring the filing of a “shelf” registration statement and/or (2) sales for cash or dispositions upon exchange or conversion of securities or dispositions for any form of consideration or no consideration), provided that:
(i) if, while a registration request is pending pursuant to be sold. Subject to this Section 4.01(g2(a), the Company shall file determines, following consultation with and receiving advice from its legal counsel, that the filing of a registration statement under would require the Securities Act disclosure of material information that the Company has a bona fide business purpose for preserving as confidential and the disclosure of which the Company determines reasonably and in good faith would have a material adverse effect on the Company, the Company shall not be required to effect a registration pursuant to this Section 2(a) until the Demand Registration as promptly as possible earlier of (A) the date upon which such material information is otherwise disclosed to the public or ceases to be material and in any event within 90 (B) 30 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC (orCompany makes such determination, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two shall not be permitted to delay a requested registration in reliance on this clause (i) more than twice in any 12-month period;
(ii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) prior to 180 days following the closing of the Public Offering, or (B) within a period of 60 calendar days after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a); and
(iii) the Company shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) in the case of a registration request by Halliburton or any of its Affiliates, on more than three occasions after such time as Halliburton and its Affiliates collectively own less than a majority of the voting power of the then outstanding shares of Common Stock (it being acknowledged that so long as Halliburton and its Affiliates collectively own a majority of the voting power of the then outstanding shares of Common Stock, there shall be no limit to the number of occasions on which Halliburton or its Affiliates may exercise their rights under this Section 2), or (B) in the case of a registration request by a Permitted Transferee or any of its Affiliates, on more than the number of occasions permitted such Holder in accordance with Section 11 hereof (it being acknowledged that (1) the exercise by such Permitted Transferee and its Affiliates of such rights shall not limit the number of occasions on which Halliburton and its Affiliates may exercise their rights under this Section 2 and (2) Demand Registrations pursuant so long as such Permitted Transferee and its Affiliates collectively own a majority of the then outstanding shares of Common Stock, there shall be no limit to Demand Requests made by Holders the number of Registrable Securities pursuant to occasions on which such Permitted Transferee or its Affiliates may exercise their rights under this Section 4.01(a2); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(cb) 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 count as a Demand Registration until it has become effective be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (i) unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, registration statement filed in connection with such withdrawn registration); provided, however, that if, after it therewith has become effective, an offering of Registrable Securities pursuant (ii) if after such registration statement has become effective, it becomes subject to a registration is interfered with by any stop order, or there is issued an injunction or other order or requirement decree of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of the Registrable Securities so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected satisfied other than by reason of some act, misrepresentation or omission by a Holder and will are not count as a Demand Registrationwaived by the purchasers or underwriters.
(dc) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Requesting Holders of a majority Fair Market Value of the Registrable Securities to be registered in a Demand Registration connection with such offering shall select have the investment banking firm or firms right to manage designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering, provided that such selection .
(d) The Company shall be subject have the right to cause the consent registration of additional securities for sale for the account of any person (including the Company, which consent shall not be unreasonably withheld. No Person may participate ) in any registration of Registrable Securities requested by any Holder pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 arrangements2(a); 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that if the managing underwriter or underwriters shall advise other independent marketing agent for such offering (if any) determines that, in its opinion, the Company or the Requesting Holders in writing that the inclusion of such additional securities proposed to be sold will materially and adversely affect the price or success offering and sale of the offering Registrable Securities to be registered in accordance with the intended method or methods of disposition then contemplated by such Holder only the number or principal amount of such additional securities, if any (a “Material Adverse Effect”in excess of the number or principal amount of Registrable Securities). Furthermore, which, in the event the managing opinion of such underwriter or underwriters agent, can be so sold without materially and adversely affecting such offering 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large registration. The rights of a Holder to cause a Material Adverse Effect, the registration of additional Registrable Securities of the Requesting Holders to be included held by such Holder 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 any registration of Registrable Securities requested by another Holder pursuant to Section 2(a) shall be included in such registration governed by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, who shall have the right, exercisable by written notice to the Company within 20 days of their receipt agreement of the Company’s notice, to elect to include Holders with respect thereto as provided in such Demand Registration such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f11(a).
(ge) The Company may defer the filing (but shall not the preparation) of be obligated to file a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental relating to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement request by a Holder pursuant to this Section 4.01(g2 from and after such time as such Holder (together with any Affiliates of such Holder) shall be liftedfirst owns Registrable Securities representing (assuming for this purpose the conversion, and the requested registration statement shall be filed forthwith, if, in the case exchange or exercise of a deferral pursuant to clause (i) all Registrable Securities then owned by such Holder that are convertible into or exercisable or exchangeable for Common Stock of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (iiCompany) less than 10% of the preceding sentence, the proposed registration for then issued and outstanding Common Stock of the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestUpon the written request of a Holder, in writing (a “Demand Request”), requesting that the Company effect the registration of Registrable Securities under the Securities Act (which request shall specify the amount of Registrable Securities so requested to be registered and the intended method of disposition thereof), the Company shall use its commercially reasonable best efforts to effect promptly the registration under the Securities Act of all or part of its or their the Registrable Securities that the Company has been so requested to register, for disposition in accordance with the intended method of disposition stated in such request. The Company shall not be obligated to effect any registration pursuant to this Section 6.2 (a “Demand Registration”). Notwithstanding i) before the foregoingexpiration of the Lock-Up Period, no Demand Request will be effective hereunder unless (ii) if the proposed aggregate value of the Registrable Securities sought to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” registered pursuant to such registration (based on the then current market price for the Common Stock) is less than ten million dollars ($10,000,000), or (iii) after the Company has previously effected two (2) registrations pursuant to this Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders6.2.
(b) Each Demand Request A registration requested pursuant to this Section 6.2 shall specify the number of Registrable Securities proposed not be deemed to be sold. Subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request have been effected
(the “Required Filing Date”i) and shall use all commercially reasonable efforts to cause the same to be unless it has been declared effective by the SEC (orand kept effective for the minimum period set forth in Section 6.9(c)(ii), if eligible, to provided that a registration that does not become automatically effective) as promptly as practicable effective after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant has filed a Registration Statement with respect thereto solely by reason of the refusal to Demand Requests made proceed by Holders of Registrable Securities pursuant any Holder shall be deemed to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from have been effected by the applicable Demand Registration pursuant to Section 4.01(e) below, Company unless the Holders shall have the right, with respect elected to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, registration expenses referred to in Section 6.9(b) hereof in connection with such withdrawn registration); provided, however, that (ii) if, after it has become effectiveprior to the expiration of the minimum effective period set forth in Section 6.9(c)(ii), an offering of Registrable Securities pursuant to a such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtcourt for any reason other than a misrepresentation or an omission by a Holder, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities on the basis provided in any underwriting arrangements described above and (iiiii) completes and executes all questionnairesif the conditions to closing specified in the purchase agreement or underwriting agreement, powers of attorneyif any, 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 entered into in connection with any such registration are not satisfied other than representations and warranties as to (A) such Person’s ownership by reason of his some wrongful act or its Registrable Securities to be transferred free and clear of all liensomission, claims and encumbrancesor act or omission in bad faith, (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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(fc) Upon receipt The Company may postpone, for up to ninety (90) days, the filing or the effectiveness of a Registration Statement for a registration requested pursuant to this Section 6.2 if the Board of Directors of the Company reasonably believes the requested registration would have a material adverse effect on, impose an undue burden on the Company's ability to proceed with, or otherwise interfere in any Demand Requestmaterial respect with, any pending proposal or plan by the Company to engage in any public offering or private placement of equity or debt securities, the negotiation of a credit facility or other financing, or any material pending corporate development or transaction, including, without limitation, a material acquisition of securities or assets, any tender offer, merger, consolidation, reorganization or other similar transaction material to the Company. In addition, if the Company shall have entered into a definitive agreement or filed a registration, information or proxy statement with the SEC with respect to any such material transaction, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration be entitled to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) or effectiveness of a registration statement required Registration Statement requested by Section 4.01(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 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 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 Holder pursuant to this Section 4.01(g6.2 for an additional forty-five (45) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestThe Company, in writing upon written demand (a “Demand RequestNotice”), that ) of the Company effect Holder(s) of at least 51% of the registration under the Securities Act of all or part of its or their total Registrable Securities underlying all outstanding Purchase Options (“Majority Holders”) agrees to register (a “Demand Registration”). Notwithstanding , under the foregoingSecurities Act on no more than two occasions, no Demand Request will be effective hereunder unless all or any portion of the proposed Registrable Securities so long as such registration is with respect to be sold by at least thirty-three percent (33%) of the Holders requesting Registrable Securities (or a lesser percent if the Demand Registration (anticipated aggregate offering price, net of selling expenses, would exceed $5 million). For the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) representavoidance of doubt, in the aggregate, event that more than 35one Purchase Option is issued as compensation to an underwriter of the Company in the Offering, a Demand Registration may be made only upon written demand of the Holders of at least 51% of the total number of Registrable Securities held by underlying all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be soldoutstanding Purchase Options. Subject to Section 4.01(g)On such occasion, the Company shall will file a registration statement under covering the Registrable Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 sixty (60) days after receiving receipt of a Demand Request (the “Required Filing Date”) Notice and shall use all its commercially reasonable efforts to cause the same to be have such registration statement declared effective promptly thereafter, subject to compliance with review by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingCommission; provided, however, that the Company need 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 Holder was or will be given the opportunity to exercise its piggy-back registration rights with respect to all of the underlying Registrable Securities under Section 5.2 hereof in connection with the offering covered by such registration statement or (ii) if such registration statement relates to an underwritten primary offering of securities of the Company, until the offering covered by such 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 materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act. The Company covenants and agrees to give written notice of its receipt of any Demand Notice by any Holder(s) to all other registered Holders of any portion of this Purchase Option issued in connection with the Offering and/or the Registrable Securities thereunder within ten (10) days from the date of the receipt of such Demand Notice. The Holders of this Purchase Option issued in connection with the Offering shall not, in the aggregate, effect only more than two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to this Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) 5.1. A registration will not count as a Demand Registration until it the registration statement filed with the Commission with respect to such Demand Registration has become been declared effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed complied with all of its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration with respect thereto unless the Requesting Majority Holders withdraw their request for such registration and elect not to pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration)the registration expenses therefor that were incurred by the Company; provided, however, that if, after it such registration statement has become been declared effective, an the offering of Registrable Securities pursuant to a registration Demand Registration is interfered with by any stop order, injunction or other order or requirement injunction of the SEC Commission or any other governmental agency or court, the registration statement with respect to such registration Demand Registration will be deemed not to have been effected declared effective, unless and will not count as a Demand Registration.
until, (di) Requesting such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) the Majority Holders can request a “firm commitment” underwritten thereafter elect to continue the offering. If a The Company shall bear all fees and expenses attendant to the first Demand Registration is a “firm commitment” underwritten offeringpursuant to Section 5.1, including the Requesting Holders reasonable and documented expenses of a majority single legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities in an amount not to be registered in a Demand Registration exceed $50,000, but the Holders shall select the investment banking firm pay any and all underwriting commissions or firms to manage the underwritten offering, provided that such selection shall be subject brokerage fees related to the consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, if applicable. The fees and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited expenses attendant to the net amount received by such Person from the sale of his or its Registrable Securities an additional Demand Registration pursuant to such registration.
(e) No securities to be sold for the account of any Person (including the Company) other than a Requesting Holder this Section 5.1 shall be included in borne by the Holder(s). The Company agrees to 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 registration statement filed pursuant to a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion remain effective for a period of such securities will materially and adversely affect the price or success of the offering at least six (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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f6) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after consecutive months from the effective date of such registration statement or, if earlier, until the distribution contemplated in the registration statement contemplated has been completed. The Holders shall only use the prospectuses provided by clause (ii) below) if (i) at the time the Company receives to sell the Demand Requestshares covered by such registration statements, and will immediately cease to use any prospectus furnished by 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 determines in good faith Company advises the Holder that such disclosure would prospectus may no longer be materially detrimental used due to the Company and its stockholders a material misstatement or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceomission.
Appears in 1 contract
Demand Registration. 2.1 Registration Other Than on Form F-3 or Form S-3. Subject to the terms of this Agreement, at any time or from time to time after the date that is six (a6) Any Investor months after the closing of the IPO, the Holders holding fifteen percent (15%) or more of the then outstanding Series A Registrable Securities, Series B Registrable Securities or Series C Registrable Securities, respectively, may request, request in writing (a “Demand Request”), that the Company effect a Registration and a listing of the Series A Registrable Securities, Series B Registrable Securities or Series C Registrable Securities, respectively, on the stock exchange on which the Ordinary Shares are then listed. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all other Holders, and (y) as soon as practicable, use its reasonable best efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution in such jurisdiction as the Initiating Holders may request. The Company shall be obligated to effect no more than three (3) Registrations pursuant to this Section 2.1 that have been declared and ordered effective.
2.2 Registration on Form F-3 or Form S-3. Subject to the terms of this Agreement, if the Company qualifies for Registration on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the United States), any Holder may request the Company to file, in any jurisdiction in which the Company has had a registered underwritten public offering, a Registration Statement on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the United States), including without limitation any registration statement filed under the Securities Act providing for the registration of, and the sale on a continuous or a delayed basis by such Holder of, all of all or part of its or their the Series A Registrable Securities, Series B Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of or Series C Registrable Securities held by all Holders.
(b) Each Demand Request shall specify such Holder pursuant to Rule 415 under the number Securities Act and/or any similar rule that may be adopted by the Commission. Upon receipt of Registrable Securities proposed to be sold. Subject to Section 4.01(g)such a request, the Company shall file a registration statement under (i) promptly give written notice of the Securities Act proposed Registration to effect the Demand Registration all other Holders and (ii) as promptly soon as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall practicable, use all commercially its reasonable best efforts to cause the same Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be declared effective by the SEC (or, if eligible, Registered and qualified for sale and distribution in such jurisdiction. The Company shall be obligated to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only no more than two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected declared and will not count as a Demand Registration.
ordered effective within any twelve (d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 12)-month period pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once2.2.
Appears in 1 contract
Demand Registration. (a) Any Investor may requestAt any time subsequent to one year after the end of the Offering Period and expiring five (5) years after the end of the Offering Period, the Investor, together with all other purchasers of Securities in the Offering, holding Registrable Securities or the right to acquire Registrable Securities (through the exercise or conversion of the Securities) that would constitute, in writing the aggregate, a majority of the Registrable Securities (assuming all Notes have been converted and all Warrants have been exercised) (the “Requesting Holders”) shall have the right (which right is in addition to the registration rights under Section 6(A)(1) hereof), exercisable by written notice provided to the Company at its address set forth herein, to have the Company prepare and file with the SEC, on one occasion, a Registration Statement (on any form available to the Company upon which the registration may be qualified )and such other documents, including a prospectus, as may be necessary in the opinion of both counsel for the Company and counsel for the Investors, in order to comply with the provisions of the Act, so as to permit a public offering and sale of Registrable Securities included in the Registration Statement (the “Demand Request”). No later than 10 days after receiving such Demand Request, that the Company effect shall provide written notice of the registration under Demand Request to the Securities Act of all or part of its or Investors other than the Requesting Holders, at the address for each such Investor maintained in the Company’s records. Such non-Requesting Holders shall have the right to include their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregateRegistration Statement, more than 35% provided that such Investors shall notify the Company in writing, at its address set forth herein, within fifteen (15) days after the Company mails the notice referred to in the preceding sentence. For purposes of this paragraph 6A(2)(a), the total number of term “Registrable Securities” means the Registrable Securities held (or which the Investor has the right to acquire upon the exercise or conversion of the Securities held by all Holdersthe Investor) by the Investor, together with any Underlying Shares issued or issuable upon exercise or conversion of Securities acquired in the Offering by purchasers other than the Investor and to which registration rights identical to those contemplated herein apply.
(b) Each Demand Request All fees, disbursements and out-of-pocket expenses and costs incurred by the Company in connection with the preparation and filing of the Registration Statement and in complying with applicable federal securities and Blue Sky laws (including, without limitation, all attorneys' fees of the Company) shall specify be borne by the number Company. The Investors shall bear the cost of underwriting and/or brokerage discounts, fees and commissions, if any, and transfer taxes applicable to the Registrable Securities proposed being registered and the fees and expenses of their counsel. The Company shall use its reasonable best efforts to be soldqualify any of the Registrable Securities for re-sale in such states as any Investor reasonably requests. Subject to Section 4.01(g)However, the Company shall file a registration statement under the Securities Act not be required to effect the Demand Registration as promptly as possible and qualify in any state which will require an escrow or other restriction relating to the Company and/or the Investors, or which will require the Company to qualify to do business in such state or require the Company to file therein any general consent to service of process. The Company at its expense will supply the Investors with copies of the applicable Registration Statement and any prospectus included therein and other related documents in such quantities as may be reasonably requested by the Investors.
(c) In the event that (i) the Registration Statement to be filed by the Company pursuant to Section (6)(A)(2)(a) is not filed with the SEC within 90 sixty (60) days after receiving from the date that a Demand Request is received by the Company (the “Required Filing Demand Date”) and shall use all commercially reasonable efforts to cause the same to be and, (ii) such Registration Statement is not declared effective by the SEC within one hundred and twenty (or120) days from the Demand Date, if eligibleor (iii) such Registration Statement is does not continue to be effective for the period set forth in Section (6)(C) below (each a “Registration Default”) then the Company will pay the Investor (pro rated on a daily basis), as partial compensation for such failure and not as a penalty, one and one-half percent (1.5%) of the purchase price of the Registrable Securities purchased from the Company and held by the Investor for each month (or portion thereof) until such Registration Statement has been filed (in the case of clause (i)), and in the event of late effectiveness (in case of clause (ii) above) or lapsed effectiveness (in the case of clause (iii) above), one and one-half percent (1.5%) of the purchase price of the Registrable Securities purchased from the Company and held by the Investor for each month (or portion thereof) until such Registration Statement has been declared or re-declared effective (regardless of whether one or more such Registration Defaults are then in existence, but without duplication of such partial compensatory payments). Such compensatory payments shall be made to become automatically effectivethe Investor in cash, within five (5) as promptly as practicable after such filing; calendar days of demand, provided, however, that the payment of such amounts shall not relieve the Company need effect only two (2) Demand Registrations from its obligations to register the Securities pursuant to Demand Requests made by Holders this Section. If the Company does not remit the payment to the Investor as set forth above, the Company will pay the Investor reasonable costs of collection, including attorneys’ fees, in addition to the liquidated damages. The registration of the Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each this provision or payment of such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 compensatory amounts shall not be unreasonably withheld. No Person may participate affect or limit the Investor’s other rights or remedies as set forth in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 this Agreement 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registrationat law.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Subscription Agreement (Ikona Gear International Inc)
Demand Registration. (a) Any Investor may requestSubject to the conditions of this Section 5.1, in writing (if the Company shall receive a “Demand Request”), written request from the Holders holding not less than a majority of the Registrable Securities then outstanding that the Company effect file a registration statement with respect to all or part of the Registrable Securities under the Securities Act with an anticipated aggregate offering price of at least $10,000,000, then the Company shall, within ten (10) calendar days of the receipt thereof, give written notice of such request to all Holders, and, subject to the limitations of this Section 5.1, use its commercially reasonable efforts to effect, as expeditiously as reasonably possible, the registration under the Securities Act of all or part of its or their Registrable Securities that all Holders request to be registered pursuant to and in accordance with this Agreement (a “"Demand Registration”"). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request Notwithstanding the foregoing, if the Company shall specify furnish to the number Holders requesting a registration statement pursuant to this Section 5.1, a certificate signed by the President or Chief Executive Officer of Registrable Securities proposed the Company stating that in the Board's good faith judgment it would be seriously detrimental to the Company and its stockholders for such a registration statement to be sold. Subject to Section 4.01(g)filed in the near future, the Company shall file have the right to defer such filing for a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 period of not more than ninety (90) days after receiving a Demand Request (receipt of the “Required Filing Date”) and shall use all commercially reasonable efforts to cause request of the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingHolders specified in Section 5.1(a); provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if may not utilize this right more than twice in any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationtwelve-month period.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the 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 Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 effect or take 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 had determined action 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 4.01(g) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause 5.1:
(i) of prior to the preceding sentence, 548th day after the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause Effective Date;
(ii) of after the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement Company has effected two Demand Registrations pursuant to this Section 4.01(g)5.1, and such registrations have been declared or ordered effective (which, for the Company avoidance of doubt, 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 mean that the Company is deferring such filing registrations shall have been effective for an aggregate of ninety (90) calendar days, or until all Registrable Securities covered thereby have been sold, if earlier);
(iii) if the Holders making the request provided for in Section 5.1(a) propose to dispose of Registrable Securities that could be disposed of in a single ordinary brokerage transaction under the quantity limitation of Rule 144; or
(iv) if the Holders making the request provided for in Section 5.1(a) propose to dispose of Registrable Securities that may be registered on Form S-3 pursuant to this Section 4.01(g) 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 Securities 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 request made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once5.2 below.
Appears in 1 contract
Sources: Stockholders Agreement (Warburg Pincus Private Equity Viii L P)
Demand Registration. (a) Any Investor may request, in writing (a “Demand Request”), that the Company effect the registration under the Securities Act of all On or part of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the proposed Registrable Securities prior to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify the number of Registrable Securities proposed to be sold. Subject to Section 4.01(g)each Filing Date, the Company shall prepare and file with the Commission a registration statement under Registration Statement covering the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use resale of all commercially reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be registered in made on a Demand continuous basis pursuant to Rule 415. Each Registration shall select the investment banking firm or firms to manage the underwritten offering, provided that such selection 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 consent provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Company, which consent shall Holders or to make any disclosure contained therein not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(amisleading) unless such Person (i) agrees to sell such Person’s Registrable Securities on substantially the basis provided in any underwriting arrangements described above “Plan of Distribution” attached hereto as Annex A and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under substantially the terms of such underwriting arrangements“Selling Stockholder” section attached hereto as Annex B; provided, however, that no such Person Holder shall be required to make be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any representations event no later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or warranties 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 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 (the “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) 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 such registration other than representations provision of this Agreement and warranties 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 (A) such Person’s ownership advocate with the Commission to maximize the number of his or its Registrable Securities to be transferred free and clear of all liensregistered), claims and encumbrances, (B) such Person’s power and authority unless otherwise directed in writing by a Holder as 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 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 other than Registrable Securities; and
(ii) Second, the 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 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 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 liability 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 Person 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. 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 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 proportion theretofull. 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 providedreasonably acceptable to the Holder and the Company’s transfer agent, furtherif any, (ii) to a Holder with respect to an Event caused by any action of such Holder or failure of such Holder to take any action that such liability will be limited ▇▇▇▇▇▇ is required to take hereunder, or (iii) to a Holder in the net amount received by such Person from the sale event it is unable to lawfully sell any of his or its Registrable Securities pursuant to such registrationbecause of possession of material non-public information.
(e) No securities to be sold If Form S-3 is not available for the account of any Person (including the Company) other than a Requesting Holder shall be included in a Demand Registration to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success registration of the 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 resale of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effecthereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Requesting Holders to be included Registration Statement then in effect until such Demand time as a Registration shall equal Statement on Form S-3 covering 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 Securities requested to be included in such registration has been declared effective by each such Requesting Holderthe Commission.
(f) Upon receipt of any Demand RequestNotwithstanding anything to the contrary contained in this Agreement, in no event shall the Company shall promptly (but in be permitted to name any event within 10 days) give Holder or affiliate of a Holder as any underwriter without the prior written notice consent of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f)Holder.
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
Appears in 1 contract
Sources: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. 2.1 At any time following the third anniversary of the Closing (a) Any Investor the "Demand Period"), TIC and each of S, Alliance and Macronix, may request, request in writing (a “Demand Request”), that the Company effect the registration all or part of their Registrable Securities be registered under the Securities Act and/or listed so as to be eligible for public trading on any securities exchange on which the Ordinary Shares are otherwise traded (a "Demand"); provided, however, the initiation of such a Demand may not be made by a Holder that holds under 1,500,000 Ordinary Shares, unless such holder has yet to exercise a Demand and jointly initiates a Demand with at least one (1) other Holder that has yet to exercise a Demand provided that (i) the Holders included in such joint initiation have aggregate holdings of at least 1,500,000 Ordinary Shares, and (ii) all or part the Holders included in such joint initiation hold under 1,500,000 Ordinary Shares on an individual basis as the result of its or their the sale of Ordinary Shares. In addition, at any time during the Demand Period, members of the Purchaser Group holding a majority of the Purchaser Group Registrable Securities (a “Demand Registration”)may jointly initiate an additional Demand. Notwithstanding the foregoing, no Demand Request will be effective hereunder unless in the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” event that, pursuant to Section 4.01(f) hereof) represent, in the aggregate, more than 35% 5.3 of the total number Additional Purchase Obligation Agreement, a member of the Purchaser Group that holds at least 800,000 Ordinary Shares does not exercise any of its Additional Purchase Obligations, the right of such member of the Purchaser Group to initiate a Demand shall be accelerated to the tenth day after the date upon which the event giving rise to the right of such member of the Purchaser Group not to exercise the Additional Purchase Obligation occurs. Upon receipt of a Demand of a member or members of the Purchaser Group, the Company will promptly give written notice of such Demand to TIC and to all other members of the Purchaser Group and the Company shall effect the registration of all Registrable Securities for which registration has been requested including Registrable Securities which the Company has been requested to register by TIC or members of the Purchaser Group by written request given to the Company within 30 days after the giving of such written notice by the Company. The Company shall use its best efforts to have a Demand become effective by the 60th day after a member of the Purchaser Group makes such Demand and, shall keep such Demand effective until the distribution of such Registrable Securities registered pursuant thereto is complete, if underwritten, or, otherwise, for 180 days. Upon receipt of a Demand of TIC, the Company will promptly give written notice of such Demand to all members of the Purchaser Group and the Company shall effect the registration of all Registrable Securities for which registration has been requested including Registrable Securities which the Company has been requested to register by members of the Purchaser Group by written request given to the Company within 30 days after the giving of such written notice by the Company. The Company shall use its best efforts to have a Demand become effective by the 60th day after TIC makes such Demand and, shall keep such Demand effective until the distribution of such Registrable Securities registered pursuant thereto is complete, if underwritten, or, otherwise, for 180 days.
2.2 In the event of a Demand by a member or members of the Purchaser Group in which the registration of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify is underwritten and the managing underwriter of the offering advises the members of the Purchaser Group and TIC in writing that marketing factors require a limitation of the number of shares to be underwritten, then there shall be excluded from such registration and underwriting to the extent necessary to satisfy such limitation, first shares which the Company may wish to register for its own account or for the account of other shareholders of the Company, and then shares held by TIC, and then shares held by the members of the Purchaser Group on a pro rata basis to the number of shares that each member of the Purchaser Group included in the Demand. In the event of a Demand by TIC in which the registration of the Registrable Securities proposed is underwritten and the managing underwriter of the offering advises TIC and the members of the Purchaser Group in writing that marketing factors require a limitation of the number of shares to be underwritten, then there shall be excluded from such registration and underwriting to the extent necessary to satisfy such limitation, first shares which the Company may wish to register for its own account or for the account of other shareholders of the Company, and then shares held by the members of the Purchaser Group on a pro rata basis to the number of shares that each member of the Purchaser Group included in the Demand, and then shares held by TIC. In the event that, following a receipt of a request by the members of the Purchaser Group and/or TIC, as the case may be, as detailed above, the managing underwriter advises the Company that due to marketing factors the shares requested to be registered for trading could not be sold. Subject , and accordingly the Company does not effect a registration statement, then such request by the members of the Purchaser Group and/or TIC, as the case may be, shall not be considered a Demand under this Section 2.
2.3 Any registration proceeding begun pursuant to Section 4.01(g)2.1 that is subsequently withdrawn at the request of the members of the Purchaser Group that initiated such registration proceeding and/or TIC, as the Company case may be, shall file a count toward the quota of registration statement under statements which the Securities Act members of the Purchaser Group and/or TIC, as the case may be, have the right to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts pursuant to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filingSection 2.1; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to such withdrawn registration shall not be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registration.
(c) A registration will not count so counted as a Demand Registration until it has become effective if such withdrawal is based upon (unless the Requesting Holders withdraw all their Registrable Securities and a) material adverse information relating to the Company has performed or its obligations hereunder condition, business or prospects which is different from that generally known to the member(s) of the Purchaser Group that were to participate in all material respectssuch registration proceeding, in which case such demand will count as the event of a Demand Registration unless by a member or members of the Requesting Holders pay all Registration ExpensesPurchaser Group and/or TIC, in the event of a Demand by TIC, as hereinafter definedthe case may be, at the time of its request or (b) general securities market conditions which are different from that generally known to the member(s) of the Purchaser Group that were to participate in such registration proceeding, in the event of a Demand by a member or members of the Purchaser Group and/or TIC, in the event of a Demand by TIC, as the case may be, at the time of its request, provided, in connection with such withdrawn registrationthis clause (b); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(emember(s) 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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the offering (a “Material Adverse Effect”). FurthermorePurchaser Group that were to participate in such registration proceeding, in the event of a Demand by a member or members of the managing underwriter or underwriters shall advise Purchaser Group and/or TIC, in the event of a Demand by TIC, as the case may be, reimburse 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 Securities proposed to be included for its expenses incurred in connection with effecting such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holderwithdrawn registration.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) 2.4 The Company may defer the filing not cause any other registration of securities for sale for its own account (but not the preparation) of other than a registration statement required by of securities to be offered to employees, directors or consultants pursuant to a benefit plan on Form S-8 or a registration in connection with a merger, an exchange offer or any acquisition) to be initiated after a registration requested pursuant to Section 4.01(a) until a date not later 2.1 and to become effective less than 90 days after the Required Filing Date (or, if longer, 90 180 days after the effective date of the registration requested pursuant to Section 2.1.
2.5 Notwithstanding the other provisions of this Section 2, in the event that at any time during the Demand Period the Company shall receive from a Holder, or a group of Holders, a written request that the Company effect a registration on Form F-3 (or any equivalent or successor form) with respect to Registrable Securities (the "F-3") where the aggregate net proceeds from the sale of such Registrable Securities equals at least three million United States Dollars (US$3,000,000), the Company will within twenty (20) days after receipt of any such request, file such registration and all such qualifications and compliance as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of the Registrable Securities as are specified in such request, and use its best efforts to have such registration on Form F-3 effective by the 60th day after the Holder, or group of Holders, make such request and keep such registration on Form F-3 effective until the distribution is complete, if underwritten, or, otherwise, for 270 days; PROVIDED, HOWEVER, that the Company shall not be obligated to file any such registration, qualification or compliance, pursuant to this Section 2.5 if the Company has, within the 180 day period preceding the date of such request, already effected one (1) registration for a requesting Holder pursuant to this Section 2.5. The Company undertakes that it will use its best efforts to continue to comply with all necessary filings and other requirements so as to maintain its qualification to use Form F-3.
2.6 The Company shall not be required to effect more than three (3) registrations initiated by TIC under Section 2.1. The Company shall not be required to effect more than one (1) registration initiated by each of S, Alliance and Macronix under Section 2.1 and one (1) additional registration (the "Additional Registration") jointly initiated by members of the Purchaser Group holding a majority of the Purchaser Group Registrable Securities under Section 2.1. For purposes of clarity, in the event multiple Holders that have yet to exercise a Demand jointly initiate a Demand and each such holder holds under 1,500,000 Ordinary Shares as the result of the sale of Ordinary Shares but together such holders hold at least 1,500,000 Ordinary Shares, such Demand shall be deemed to be a registration initiated on an individual basis by each Holder included in such joint initiation and shall not be considered an Additional Registration. Concurrent registrations in respect of multiple exchanges shall be construed as a single registration for the purposes of this Section 2.6.
2.7 The Company shall have the right to defer filing a registration statement contemplated by clause (iia "Registration Deferral") below) under the Securities Act pursuant to this Section 2 not more than once in any 12-month period if (i) at the time Board of Directors of the Company receives the Demand Request, shall determine that it would be seriously detrimental to the Company or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in to file such registration statement (but at the date the filing would not otherwise be required if such registration statement were not filed)under this Agreement, and or (ii) the Board of Directors of the Company determines in good faith that such disclosure would be materially detrimental to (A) the Company and its stockholders is in possession of material, non-public information concerning an acquisition, merger, recapitalization, consolidation, reorganization or (ii) prior to receiving the Demand Request, the Board had determined to effect a registered underwritten public offering other material transaction by or of the Company’s Securities for Company or concerning pending or threatened litigation and (B) disclosure of such information would jeopardize any such transaction or litigation or otherwise materially harm the Company’s account and .
2.8 A Registration Deferral shall end by the date that is 90 days from the date of such determination by 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 4.01(g) 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"90th Day"), or, in the case of a deferral pursuant to clause (iidescribed in Section 2.7(ii) above, the earlier of the preceding sentence90th Day and the date such material information is disclosed to the public or ceases to be material, such transaction is completed or abandoned or such litigation is settled or finally determined. In the event a Registration Deferral is instituted, the proposed members of the Purchaser Group and/or TIC, as the case may be, shall be entitled to withdraw such request. If such request is withdrawn, such registration for shall not count as one of the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to permitted registrations under this Section 4.01(g), the 2. 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 notify the members of the Company stating that the Company is deferring such filing pursuant to this Section 4.01(g) and a general statement Purchaser Group and/or TIC of the reason for such deferral and an approximation expiration or earlier termination of the anticipated delay. Within 20 days after receiving such certificate, the holders of a majority of the Registrable Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only onceany Registration Deferral.
Appears in 1 contract
Sources: Registration Rights Agreement (Quicklogic Corporation)
Demand Registration. (a) Any Investor may requestUpon the written request of the Purchaser made at any time after the expiration of the Restriction Period, in writing (a “Demand Request”), requesting that the Company effect the registration under the Securities Act of all or part any of its or their Registrable Securities (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless Shares and/or Option Shares for which the proposed Registrable Securities to be sold by the Holders requesting the Demand Registration option has been exercised (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 4.01(f) hereof) represent"Issued Option Shares"), in the aggregate, more than 35% of the total number of Registrable Securities held by all Holders.
(b) Each Demand Request shall specify specifying the number of Registrable Securities proposed Shares and/or Issued Option Shares desired to be sold. Subject so registered and the intended method or methods of disposition of such Shares and/or Issued Option Shares (including, if the proposed offering is to Section 4.01(g)be an underwritten offering, the managing underwriter or underwriters thereof which underwriter shall be acceptable to the Purchaser and the Company, the Company shall expeditiously prepare and file a registration statement with respect to, and use its best efforts to effect the registration under the Securities Act Act, the Shares and/or the Issued Option Shares which the Company has 60 61 been so requested to effect register by the Demand Registration as promptly as possible and Purchaser for disposition in accordance with the intended method of disposition stated in such request; provided, however, (i) that, in the case of any event registration pursuant to this Section 12.1 which is an underwritten offering, the Company shall have the right to postpone such registration for up to one hundred twenty (120) days on the advice of the managing underwriter thereof, (ii) that the Company may delay the filing of any registration statement requested pursuant to this Section 12.1 for a reasonable period of time (not to exceed 120 days) if within 90 five days after receiving of the decision of the board of directors of the Company to delay such filing, the Company provides the Purchaser with a Demand Request (certificate signed by the “Required Filing Date”) and shall use all commercially reasonable efforts to cause Chairman of the same Board of Directors of the Company stating that, in the good faith judgment of the Board of Directors of the Company, the filing of the registration statement would require disclosure of information not otherwise then required to be declared effective disclosed and that such disclosure would adversely affect any material business opportunity, transaction or negotiation than contemplated by the SEC Company and (oriii) that the Purchaser may only request the Company to register up to three times on Form F-1, if eligibleForm F-2 or Form F-3 or similar form of registration. Any registration of the Shares and/or Issued Option Shares requested by the Purchaser pursuant to the provisions of this Section 12.1 which shall not have become effective and remained effective in accordance with the provisions of Section 12.4, below, shall not be deemed to become automatically effective) as promptly as practicable after such filingbe a registration for any purpose hereunder; provided, however, that if the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each reason such exclusion, to request one additional Demand Registration.
(c) A registration will did not count as a Demand Registration until it has become effective (unless is due to the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection Purchaser's failure to comply with such withdrawn registration); provided, however, that if, after it has become effective, an offering any term of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or courtthis Agreement, such registration will shall be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offeringregistration hereunder. If a Demand Registration is a “firm commitment” underwritten offering, In connection with the Requesting Holders of a majority registration of the Registrable Securities 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 Shares and/or Issued Option Shares pursuant to this Section 4.01(a) unless such Person (i) agrees to sell such Person’s Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 12.1 pursuant to the immediately preceding sentence, the amount of Registrable Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting Holder.
(f) Upon receipt of any Demand Requestfirst registration, the Company shall promptly (but in any event within 10 days) give written notice pay all expenses of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) prior to receiving the Demand Requestrelated offering, the Board had determined to effect a registered underwritten public offering of the Company’s Securities for the Company’s account and the Company had taken substantial steps (including, but not limited towithout limitation, selecting a managing underwriter for such offering) any and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.special audits,
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Demand Registration. (a) Any Investor may requestThe Buyer agrees that, in writing upon the request of the Parent, it will file a registration statement (a “Demand RequestRegistration Statement”), that the Company effect the registration ) under the Securities Act as to the number of all or part shares of its or their Registrable Securities specified in such request (a “Demand Registration”). Notwithstanding ; provided that (i) the foregoing, no Demand Request will Company shall not be effective hereunder unless required to file a Registration Statement prior to such time as all financial statements required under the proposed Registrable Securities Act to be sold by included therein are available and all required accountants’ consents have been obtained; (ii) the Holders requesting the Demand Company shall not be required to file a Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant Statement with respect to Section 4.01(f) hereof) represent, in the aggregate, more than 3580% of the total number Shares prior to the first anniversary of the Closing Date; (iii) the Buyer shall not be required to file more than three Registration Statements; (iv) the Parent shall not make more than one request for a Demand Registration in any twelve month period, (v) the Company shall not be required to file a Registration Statement with respect to less than the lesser of (A) 20% of the Shares and (B) Shares having a value based on the average closing price of Buyer Common Stock for the thirty (30) day period prior to the date of such request for a Demand Registration of not less than $20,000,000, (vi) any sales of Registrable Securities, other than pursuant to an Underwritten Registration, shall be subject to the limitation set forth in Section 4.01(b), (vii) the Buyer shall not be required to effect a Demand Registration if within 10 days after receipt of a request therefor, the Buyer provides written notice of its bona fide intention to file within 60 days a registration statement for an underwritten public offering of securities for its own account, and (viii) the Buyer shall not be required to effect a Demand Registration during the period from the date of filing of, and ending 90 days after the effective date of, any registration statement for an underwritten public offering of securities for the account of the Buyer. Buyer’s right to block or defer a Demand Registration pursuant to this Article 3 may be exercised only once in any 12- month period. During any period that a Demand Registration is blocked or deferred pursuant to this Section 3.01, Buyer shall not file a Registration Statement under the Securities held by all HoldersAct covering the resale of securities of the Buyer for the account of any other stockholder of Buyer.
(b) Each Demand Request In the case of an Underwritten Registration, the Parent shall specify select the number of Registrable Securities proposed lead underwriter, any additional underwriters, and any additional investment bankers and managers to be sold. Subject used in connection with the offering, subject to Section 4.01(g), the Company shall file a registration statement under the Securities Act to effect the Demand Registration as promptly as possible and in any event within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially Buyer’s reasonable efforts to cause the same to be declared effective by the SEC (or, if eligible, to become automatically effective) as promptly as practicable after such filing; provided, however, that the Company need effect only two (2) Demand Registrations pursuant to Demand Requests made by Holders of Registrable Securities pursuant to Section 4.01(a); provided, further, that if any Registrable Securities requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 4.01(e) below, the Holders shall have the right, with respect to each such exclusion, to request one additional Demand Registrationapproval.
(c) A registration will not count as a Demand Registration until it has become effective (unless the Requesting Holders withdraw all their Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be deemed not to have been effected and will not count as a Demand Registration.
(d) Requesting Holders can request a “firm commitment” underwritten offering. If a Demand Registration is a “firm commitment” underwritten offering, the Requesting Holders of a majority of the Registrable Securities 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 Without the consent of the CompanyParent, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 4.01(a) unless such Person (i) agrees to sell such Person’s no securities other than Registrable Securities 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 Securities 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 Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Securities pursuant to such registration.
(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 to the extent that the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of such securities will materially and adversely affect the price or success of the 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 Securities proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Registrable Securities 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 Securities requested to be included in such registration by each such Requesting HolderRegistration.
(f) Upon receipt of any Demand Request, the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Investors, 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 such portion of their Registrable Securities as they may request. All Holders requesting to have their Registrable Securities included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Section 4.01(f).
(g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 4.01(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 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 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 4.01(g) 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 preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 4.01(g), 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 4.01(g) 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 Securities held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a particular registration statement pursuant to this Section 4.01(g) only once.
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