Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register. (b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions: (i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days; (ii) the Company may delay the filing or effectiveness of any registration statement for a period of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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and (iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order: (A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a); (B) second, the Primary Shares; and (C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.
Appears in 3 contracts
Sources: Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Nortek Inc), Registration Rights Agreement (Ply Gem Industries Inc)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant Subject to the Merger Agreementconditions of this Section 5.1, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, if the Company shall be requested by receive a written request from the Investor Holders holding not less than a majority of the Registrable Securities then outstanding that the Company file a registration statement with respect to effect 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 Registrable Shares, then, upon the written request, delivered to the Company (which Securities that all Holders request shall specify the number of Registrable Shares proposed to be included registered pursuant to and in such registrationaccordance with this Agreement (a “Demand Registration”), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) Notwithstanding the foregoing, if the Company shall furnish to the contrary notwithstandingHolders requesting a registration statement pursuant to this Section 5.1, a certificate signed by the President or Chief Executive Officer of 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 filed in the near future, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Holders specified in Section 5.1(a); provided, however, that the Company may not utilize this right more than twice in any twelve-month period.
(c) The Company shall not be obligated required to effect or take any action to effect a registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions5.1:
(i) prior to the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under commencement of the 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 daysShelf Registration Period;
(ii) after 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(ahas effected four (4) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once Demand Registrations pursuant to this clause Section 5.1, and such registrations have been declared or ordered effective (Bwhich, for the avoidance of doubt, shall mean that the registrations shall have been effective for an aggregate of ninety (90) in any 18-month period; andcalendar days, or until all Registrable Securities covered thereby have been sold, if earlier);
(iii) with respect if the Holders making the request provided for in Section 5.1(a) propose to any registration 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 a request made pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession5.2 below.
Appears in 3 contracts
Sources: Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Nuance Communications, Inc.)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by Upon written notice to the Company from the Investor; PROVIDEDInvestor at any time during the Effective Period (the "Demand Request") requesting that the Company effect the registration under the 1933 Act of any or all of the Registrable Securities held by the Investor or any other Holder, HOWEVERwhich notice shall specify the intended method or methods of disposition of such Registrable Securities, that the Company shall prepare and, as promptly as is practicable, and in any event within 60 days after such rescinded registration shall not count as request, file with the Commission a registration statement with respect to such Registrable Securities and thereafter use its best efforts to cause such registration statement to be declared effective under the 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Investor may exercise its rights to request registration in respect of Registrable Securities held by the Investor or any other Holder under this Section 2.02(a) on not more than four occasions (each such registration being referred to herein as a "Demand Registration"); and
(ii) the Company shall not be required to effect more than one Demand Registration in any calendar year.
(b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by the Investor pursuant to this Section 2.02 shall not be deemed to have been effected, and, therefore, not requested and the rights of the Investor shall be deemed not to have been exercised for purposes of Section 2.02(a), (i) if the Investor has not received notice (confirmed by the Commission) that such Demand Registration has become effective under the 1933 Act or (ii) if such Demand Registration, after it became effective under the 1933 Act, was not maintained effective under the 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the Commission or other Governmental Entity solely on the account of a material misrepresentation or omission of the Investor) for at least 120 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto (but in no event before the expiration of the 90-day period referred to in Section 4(3) of the 1933 Act and Rule 174 promulgated thereunder, if applicable)). The time periods referred to in the preceding sentence shall be extended, with respect to any Demand Registration, by the number of days in any Section 2.04 Period and/or Section 2.06(e) Period applicable to such Demand Registration. If a Demand Request is made by the Investor during the Effective Period but the related Demand Registration shall be deemed not to have been exercised under the circumstances set forth in this Section 2.02(b), then the Investor shall be deemed not to have used one of its rights to request a Demand Registration under this Section 2.02 and shall continue to have such right.
(c) The Company shall have the same rights to piggy-back any shares of Class A Common Stock on a Demand Registration initiated pursuant to this Section 2 for purposes 2.02 as a Holder of clause Registrable Securities would have in a Piggy-back Registration, and other stockholders of the Company may exercise any piggy-back registration rights granted to them by the Company with respect to such Demand Registration; provided however, that notwithstanding anything to the contrary in this Agreement, if the lead or managing underwriter referred to in Section 2.03 determines that marketing factors require a limitation on the number of shares of Class A Common Stock to be offered and sold pursuant to such Demand Registration, there shall be included in the offering only that number of shares of Class A Common Stock that such lead or managing underwriter reasonably and in good faith believes will not jeopardize the success of the offering (including a material reduction in the price per share of the Registrable Securities to be sold). In such event, the shares of Class A Common Stock to be included in such Demand Registration shall be apportioned (i) above if first, to any Registrable Securities that the Holders propose to sell in such Demand Registration, pro rata among such Holders on the basis of the relative number of Registrable Securities requested to be included therein by each such Holder, (ii) second, to any Class A Common Stock that the Company shall have been reimbursed for all out-of-pocket expenses incurred by proposes to sell in such Demand Registration and (iii) third, among any shares of Class A Common Stock that other stockholders of the Company propose to sell in connection with such rescinded registration and provided further that no request Demand Registration, pro rata among such stockholders on the basis of the relative number of shares requested to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of included therein by each such recessionstockholder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Echostar Communications Corp), Investment Agreement (Echostar Communications Corp), Registration Rights Agreement (Echostar Communications Corp)
Demand Registration. (a) If, following At any time from the earlier of (i) six (6) months following the consummation completion of a merger, consolidation, tender offer, sale of assets an IPO or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety the third (903rd) days after the termination anniversary of the Merger Agreement or date of this Agreement, if the failure to consummate the transactions contemplated thereby regardless Holders representing at least a majority of the reasons thereforeRegistrable Shares then outstanding (the “Initiating Holders”) shall state in writing that such Holders desire to sell Registrable Shares in the public securities markets and request the Company to effect the registration of Registrable Shares under the Securities Act, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such the registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerregister by the Holders. For the avoidance of doubt, the Company shall not be required to register the sale or re-sale of any True-Up Shares or Conversion True-Up Shares in an IPO.
(b) Anything Notwithstanding anything contained in this Section 2(a) 2 to the contrary notwithstandingcontrary, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the The Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two (2) long-form registration statements initiated pursuant to Section 2(a), or ) (other than those on form S-3 as set forth in Section 4) at the Company’s expense; (B) more than two (2) long-form registration statements initiated pursuant to Section 2(a) at the Holders’ expense; (C) any demand registration statement pursuant to Section 2(a) with an anticipated aggregate offering price of less than $10,000,000; nor (D) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms form thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 one hundred eighty (180) days;.
(ii) the The Company may delay the filing or effectiveness of any registration statement for a period of up to 90 ninety (90) days after the date of a request for registration pursuant to this Section 2(a) 2 if at the time of such request the Company furnishes to the Holders requesting such registration statement pursuant to this Section 2, a certificate signed by the Chief Executive Officer of the Company stating that (Ai) the Company is engaged, or has bona fide fixed plans to file engage within 60 thirty (30) days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Registrable Shares may include Registrable Shares pursuant to Section 3 or (Bii) a Material Transaction exists at the Board has reasonably determined in its good faith judgment that it would be seriously detrimental to the Company and its stockholders for such timeregistration statement to be filed, provided provided, however, that the company Company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once registration statement pursuant to this clause Section 2(b) for a total of one hundred and twenty (B120) in any 18-month period; anddays after the date of a request for registration pursuant to this Section 2.
(iii) with With respect to any registration pursuant to this Section 2(a)2, the Company shall give notice of such registration to all Holders that are not Initiating Holders and the holders of all Other Shares that are entitled to registration rights and the Company may include in such registration any Primary Shares or Other SharesShares and shall include all Registrable Shares that Holders that are not Initiating Holders request to be registered within 20 days of the mailing of the foregoing notice by the Company; PROVIDEDprovided, HOWEVERhowever, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and and/or Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all the Registrable Shares proposed to be included in such securitiesregistration, then the number of Registrable Shares, Primary Shares and and/or Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, all the Registrable Shares held by that are issued or issuable upon conversion of the Investor requesting that its Series B Preferred Stock and any True-Up Shares (collectively, “Series B Registrable Shares Shares”), subject to the last sentence of Section 2(a), requested to be included in such registration pursuant (or, if necessary, such Series B Registrable Shares pro rata among the Holders thereof based upon the number of Series B Registrable Shares requested to Section 2(abe registered by each such Holder);
(B) second, all the Registrable Shares that are not Series B Registrable shares (“Non-Series B Registrable Shares”) requested to be included in such registration (or, if necessary, such Non-Series B Registrable Shares pro rata among the Holders thereof based upon the number of Non-Series B Registrable Shares requested to be registered by each such Holder);
(C) third, the Primary Shares; and
(CD) thirdfourth, the Other Shares. A Shares that are entitled to registration rights requested to be included in such registration under this Section 2 may (or, if necessary, such Other Shares pro rata among the holders thereof based upon the number of Other Shares requested to be rescinded prior registered by each such holder).
(iv) If the Initiating Holders so elect, the offering of such Registrable Shares pursuant to such registration being declared effective by shall be in the Commission by written notice form of an underwritten offering. The Initiating Holders shall, at their option, select one or more nationally prominent firms of investment bankers reasonably acceptable to the Company from to act as the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company lead managing underwriter or underwriters in connection with such rescinded offering. In such event, the right of any Person to include such Person’s Registrable Shares or Other Shares in such registration and provided further that no request shall be conditioned upon such Person’s participation in such underwriting. All Holders proposing to register Registrable Securities may be made pursuant to this Section 2(adistribute their securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the underwriter(s) selected for a period of 180 days from the date of such recessionunderwriting.
Appears in 3 contracts
Sources: Registration Rights Agreement (Aspen Aerogels Inc), Registration Rights Agreement (Aspen Aerogels Inc), Registration Rights Agreement (Aspen Aerogels Inc)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested by receive from any member of the Investor to effect Sponsor Group or from any member of the registration under Holdings Group, in each case holding Registrable Shares (the Securities Act of Registrable Shares, then, upon the “Requesting Equity Holders”) a written request, delivered to request that the Company (which request shall specify the number of Registrable Shares proposed effect a registration with respect to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act all or a part of the Registrable Shares which held by the Company has been so requested Requesting Equity Holders (a “Demand Registration”), then, unless the Requesting Equity Holders have failed to register.
receive any consent to Transfer such Registrable Shares required under the LLC Agreement or the Stockholder Agreement (b) Anything contained as defined in Section 2(a) to the contrary notwithstandingLLC Agreement), as applicable, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisionswill:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective within ten (A10) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after the date of such request, give written notice of the proposed registration to all Equity Holders (other than the Requesting Equity Holders) and the holders of Other Shares; and
(ii) use its reasonable best efforts to, as soon as practicable and in any event within ninety (90) days, in the case of any registration of shares conducted on a request registration statement on Form S-1 under the Securities Act (or any comparable or successor form or forms thereto) or within forty-five (45) days, in the case of a registration of shares conducted on a registration statement on Form S-3 under the Securities Act (or any comparable or successor form or forms thereto, a “Form S-3”), effect such registration (which shall, in the case of a secondary offering, be on Form S-3 if the Company is qualified for registration pursuant on Form S-3 at such time) (including, without limitation, the execution of an undertaking to Section 2(afile post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) if at as may be so requested and as would permit or facilitate the time sale and distribution of all of such request Registrable Shares as are specified in such request, together with all or such portion of (A) the Company is engagedother Registrable Shares joining in such request as are specified in a written request from any Equity Holder received by the Company, or has bona fide plans (B) any Other Shares entitled to file within 60 days of the time of such request, participate therein as are specified in a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which written request from the holders of Restricted such Other Shares may include Registrable Shares pursuant to Section 3 or received by the Company, and/or (BC) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration by the Company by notice from the Company to the Requesting Equity Holders, in each case within twenty (20) days after written notice from the Company is given under Section 2(a)(i) above; provided that the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 2(a):
(1) In any particular jurisdiction in which the Company would interfere with be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the successful marketing Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(including pricing2) of With respect to any particular Requesting Equity Holder, if all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in registered by such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that Requesting Equity Holder and its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made Group pursuant to this Section 2(a) could be sold within ninety (90) days pursuant to Rule 144 or Rule 145;
(3) If the Company shall furnish to the Requesting Equity Holders a certificate signed by the Chief Executive Officer (or other authorized officer) of the Company stating that in the good faith judgment of the Executive Committee it would be detrimental to the Company or its stockholders for a registration statement to be filed in the near future, in which case the Company’s obligation to use its reasonable best efforts to comply with this Section 2(a), and its related obligations under Section 5, shall be deferred for a period of 180 not to exceed ninety (90) days from the date of receipt of written request from the Requesting Equity Holders (provided that the Company shall only be permitted one deferral pursuant to this Section 2(a)(ii)(3) or Section 2(b) in any twelve-month period) and each Eligible Holder shall keep confidential the fact that such recessiona deferral is in effect, as well as the certificate referred to above and its contents, unless and until otherwise notified by the Company, except (A) for disclosure to such Eligible Holder’s employees, officers, directors, agents, legal counsel, accountants, auditors and other professional representatives and advisers who reasonably need to know such information solely for purposes of assisting the Eligible Holder with respect to its investment in Common Stock or Units and agree to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners or other direct or indirect investors who have agreed to keep such information confidential, (C) if and to the extent such matters are publicly disclosed by the Company or any of its subsidiaries or any other Person (except to the extent that such other Person learned of such confidential information as a result of disclosure by the Eligible Holder in violation of this Agreement) that, to the knowledge of such Eligible Holder after inquiry, was not subject to a similar obligation or duty of confidentiality to the Company and its subsidiaries and (D) as required by law, rule or regulation (provided that the Eligible Holder gives prompt notice of such use in writing, to the extent permitted by law, rule or regulation, and reasonably cooperates with the Company should the Company, at the Company’s sole expense, desire to seek a protective order or other appropriate remedy to protect the confidentiality of such confidential information prior to disclosure); or
(4) If the Requesting Equity Holders propose to register Registrable Shares at an expected offering price of less than $50,000,000 (net of Registration Expenses) in the aggregate; provided that this clause (4) shall not apply to a Shelf Registration covering an unspecified number of shares in accordance with Section 2(b). Subject to the provisions of Section 2(c) below, the Company may, in its sole discretion, include Other Shares in the registration statement filed pursuant to the request of the Requesting Equity Holders pursuant to this Section 2(a).
Appears in 3 contracts
Sources: Registration Rights Agreement (GoDaddy Inc.), Registration Rights Agreement (GoDaddy Inc.), Registration Rights Agreement (GoDaddy Inc.)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested by receive from the Investor to Initiating Investors a written demand (a "Demand Registration") that the Company effect the any registration under the Securities Act with respect to all or a part of the Registrable Shares, then, upon Shares held by the written request, delivered to Initiating Investors the Company will (which i) as soon as reasonably practicable, give written notice of such request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(call Investors; (ii) below, promptly use its best efforts to effect such registration under as soon as practicable and as will permit or facilitate the sale and distribution of all or such portion of the Initiating Investors' Registrable Shares as are specified in such demand (including any Registrable Shares which are held by Investors, which such Investors request to include in such registration within twenty (20) days after the receipt of the notice given pursuant to (i) above), and (iii) use its best efforts to cause such registration to remain effective until the earlier to occur of the date (A) the Registrable Shares covered thereby have been sold, or (B) the Investors are able to use Rule 144 of the Securities Act of to sell the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstandingwithout restriction, provided that the Company shall not be obligated to take any action to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a)such registration, or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 6.2:
(a) At any time prior to six (6) months following the Closings;
(b) After the Company has effected one registration pursuant to this Section 6.2; or
(c) If the Company shall furnish to the Initiating Investors 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 and its shareholders for purposes of clause (i) above if such Registration Statement to be filed at the date filing would be required, in which case the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a an additional period of not more than 180 days from the date of within which to file such recessionRegistration Statement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Epoch Pharmaceuticals Inc), Stock Purchase Agreement (Bay City Capital Management LLC)
Demand Registration. (a) IfAt 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, following upon written notice from such Holder in the earlier of (imanner set forth in Section 12(i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of hereof requesting that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable Shares, then, upon the written request, delivered to the Company (Securities held by such Holder or any of its Affiliates which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such 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 Registrable Shares 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 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 has been so requested to register.
(b) Anything contained determines reasonably and in Section 2(a) to good faith would have a material adverse effect on the contrary notwithstandingCompany, the Company shall not be obligated 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) 30 days after the Company makes such determination, provided, however, that the Company shall not be permitted to delay a requested registration in reliance on this clause (i) more than twice in any registration under the Securities Act except in accordance with the following provisions:12-month period;
(iii) the Company shall not be obligated to use its best efforts 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 and cause a registration statement relating to become effective a registration request pursuant to this Section 2: (A) in the case of a registration request by Transocean or any of its Affiliates, on more than two registration statements initiated pursuant three occasions after such time as Transocean 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 Transocean 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 Transocean or its Affiliates may exercise their rights under this Section 2(a2), 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 Transocean and its Affiliates may exercise their rights under this Section 2 and (2) 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 the number of occasions on which such Permitted Transferee or its Affiliates may exercise their rights under this Section 2).
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (i) unless the registration statement during any period filed in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold connection therewith has been filed and not withdrawn or has been declared effective within the prior 90 days;
become effective, (ii) the Company may delay the filing or effectiveness of any if after such registration statement has become effective, it becomes subject to any stop order, or there is issued an injunction or other order or decree of the SEC or other governmental agency or court for any reason other than a period misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of up the Registrable Securities so registered prior to 90 days after the date 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 are not satisfied other than by reason of some act, misrepresentation or omission by a request for Holder and are not waived by the purchasers or underwriters.
(c) In the event that any registration pursuant to this Section 2(a) if 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the time Fair Market Value of the Registrable Securities to be registered in connection with such offering shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such request underwritten offering.
(Ad) The Company shall have the Company is engaged, or has bona fide plans right to file within 60 days cause the registration of additional securities for sale for the time account of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which any person (including the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (BCompany) in any 18-month period; and
(iii) with respect to registration of Registrable Securities requested by any registration Holder pursuant to Section 2(a); provided, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVERhowever, that if the managing underwriter advises or other independent marketing agent for such offering (if any) determines that, in its opinion, the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares additional securities proposed to be included sold will materially and adversely affect the offering and sale of the Registrable Securities to be registered in such registration would interfere accordance with the successful marketing (including pricing) intended method or methods of all disposition then contemplated by such Holder only the number or principal amount of such additional securities, then if any (in excess of the number or principal mount of Registrable SharesSecurities), Primary Shares which, in the opinion of such underwriter or agent, can be so sold without materially and Other Shares proposed to be included in adversely affecting such registration offering shall be included in such registration. The rights of a Holder to cause the following order:
(A) first, the registration of additional Registrable Shares Securities held by the Investor requesting that its such Holder in any registration of Registrable Shares be included in such registration Securities requested by another Holder pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may shall be rescinded prior to such registration being declared effective governed by the Commission by written notice to agreement of the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count Holders with respect thereto as a registration statement initiated pursuant to this provided in Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession11(a).
Appears in 2 contracts
Sources: Registration Rights Agreement (Todco), Registration Rights Agreement (Todco)
Demand Registration. (a) If, following on or after the earlier of Registration Rights Commencement Date, either Manufacturer (iin such capacity, an "Initiating Holder") requests in writing (the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of "Demand") that the Company other than pursuant file a registration statement on Form S-3 (or any successor form to Form S-3) for a public offering of Registrable Shares the Company shall promptly give written notice of such requested registration to the Merger Agreementother Manufacturer (in such capacity, the "Non-Initiating Holder") and thereupon shall, as expeditiously as possible, but in any event within thirty (ii) ninety (9030) days after its receipt of such request, subject to Section 4.1, file such Registration Statement with the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor SEC to effect the registration under the Securities 1933 Act of Registrable Shares, then, upon the written request, delivered to the Company of: (which request shall specify the number of Registrable Shares proposed to be included in i) such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerregister by the Initiating Holder; and (ii) the Registrable Shares of the Non-Initiating Holder which the Company has been requested to register by written request given to the Company within 15 days after the giving of such written notice by the Company (which request shall specify the amount and intended method of disposition of such securities). The Company shall use its best efforts to cause such Registration Statement to be declared effective as soon thereafter as practicable and keep such Registration Statement effective until the Initiating Holder and, if applicable, the Non-Initiating Holder, notify 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, in any twelve-month period, to (i) effect more than two (2) registrations pursuant to this Section 2.2 or (ii) keep one or more Registration Statements filed pursuant to this Section 2.2 effective for more than an aggregate of ninety (90) days. The Company shall not permit any holder of Registrable Securities or any other holder of registration rights (other than a Manufacturer) to "piggyback" on such Registration Statement without the written consent of each Manufacturer participating in such registration.
(b) Anything contained in Section 2(a) to Notwithstanding the contrary notwithstandingforegoing, the Company shall not be obligated to effect take any action pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:subparagraph (a):
(i) if the Company, within ten (10) days of the receipt of a Demand, gives written notice to each of the Manufacturers of its bona fide intention to effect the filing of a registration statement with the SEC relating to a firm commitment underwriting of equity securities by the Company shall not be obligated within sixty (60) days of receipt of such Demand (other than with respect to use its best efforts a registration statement relating to file and cause a Rule 145 transaction, the resale of securities issued in a Rule 145 transaction, an offering solely to become effective (A) more than two employees, the registration statements initiated pursuant to Section 2(a)of debt securities, 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 which is not appropriate for the 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;
(ii) the Company may delay the filing or effectiveness registration 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(aShares), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises such registration statement is not filed by the Company that the inclusion within 60 days of all Registrable Shares, Primary Shares receipt of such Demand and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice SEC within 120 days after the Company's receipt of the Demand, the Company shall be obligated to cause such Registrable Shares of the Initiating Holder and, if applicable, the Non-Initiating Holder, to be registered in accordance with the provisions of this Section 2.2; and FURTHER PROVIDED that (x) any such registration statement shall be subject to Section 2.3 and 2.4 hereof and (y) the Company's right under this Section 2.2(b)(i) is subject to the Company from the Investor; PROVIDED, HOWEVER, that actively employing in good faith all reasonable efforts to cause such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes become effective; or
(ii) during the period starting with the Company's date of clause filing of, and ending on the date ninety (i90) above if days immediately following, the Company shall have been reimbursed for all out-of-pocket expenses incurred effective date of any registration statement pertaining to equity securities by the Company (other than a registration of securities in connection a Rule 145 transaction, the resale of securities issued in a Rule 145 transaction or with such rescinded respect to an offering solely to employees, the registration and provided further that no request to register of debt securities, or any other registration which is not appropriate for the registration of Registrable Securities may be made Shares), which registration was either filed as a result of the exercise by a Manufacturer of its rights pursuant to Section 2.1 hereof or this Section 2(a) for a period of 180 days from the date of such recession2.2 or was subject to Section 2.3 hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (New Commerce One Holding Inc), Registration Rights Agreement (Commerce One Inc)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested by holders of at least 20% of the Investor total number of outstanding Restricted Shares (assuming conversion of all shares of Convertible Preferred Stock) to effect the a registration under the Securities Act of Registrable all or a portion of Restricted Shares with an aggregate Fair Market Value as of the date of such request equal to at least $25,000,000, or, if the Restricted Shares have an aggregate Fair Market Value of less than $25,000,000, all of the remaining Restricted Shares, thenin accordance with this Section, upon then the Company shall promptly give written request, delivered notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Restricted Shares requested to be included in such proposed registration by such holders who respond in writing to the Company Company's notice within 15 days after delivery of such notice (which request response shall specify the number of Registrable Restricted Shares proposed to be included in such registration and the intended method of distribution, which may be pursuant to a shelf registration). If a registration pursuant to Section 7 hereof is available, the holders of Restricted Shares shall utilize such registration instead of making a request pursuant to this Section 5, unless the holders of Restricted Shares reasonably determine that it is advantageous to such holders of Restricted Shares to make a request under this Section 5. The Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such registration on an appropriate form under the Securities Act of the Registrable Restricted Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; provided, however, that the Company shall not be -------- ------- obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts file more than four registration statements in total pursuant to this Section, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to 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;
days or (iiB) the Company may delay has determined in good faith that the filing or effectiveness of any a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for a period of up preserving as confidential, such filing to be delayed until the date which is 90 days after the date of a such request for registration pursuant to this Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, 5(a); provided that the company Company may only -------- so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once registration statement pursuant to this clause (BSection 5(a)(ii)(B) in on one occasion during any 18twelve-month period; and
(iii) with respect to any the registration pursuant to Section 2(a)this Section, the Company may include in such registration any Primary Shares or Other Shares; PROVIDEDprovided, HOWEVERhowever, that if the managing underwriter advises the Company in -------- ------- writing that the inclusion of all Registrable Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) firstFirst, the Registrable Restricted Shares, pro rata based upon the ----- --- ---- number of Restricted Shares held owned by each holder at the Investor requesting that its Registrable Shares be included in time of such registration pursuant to Section 2(a)registration;
(B) secondSecond, the Primary Shares; andand ------
(C) thirdThird, the Other Shares. -----
(b) The holders of Restricted Shares requesting a registration pursuant to this Section may, in the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such holders shall select one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the Company. The Company shall, together with all holders proposing to sell Restricted Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from by the Investor; PROVIDEDPersons holding a majority of the Restricted Shares to be included in such registration with the following consequences:
(i) If such registration statement is rescinded prior to the filing date, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause paragraph (ia) above;
(ii) If such registration statement is rescinded after the filing date but prior to its effective date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above if the participating holders (x) have reimbursed the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company of such fact and provided further requested that no request the Company correct such alleged misstatement or omission and (3) the Company has refused to register Registrable Securities may be made correct such alleged misstatement or omission; and
(iii) A registration that becomes effective shall not count as a registration statement initiated pursuant to this Section 2(afor purposes of paragraph (a) for a period above unless the participating holders are able to sell at least 80% of 180 days from the date of Restricted Shares sought to be included in such recessionregistration statement.
Appears in 2 contracts
Sources: Investor's Rights Agreement (Building One Services Corp), Investor's Rights Agreement (Apollo Investment Fund Iv Lp)
Demand Registration. (a) IfIf at any time when it is eligible to use a Form S-3 registration statement, following the earlier Company receives a request from Restricted Shareholders (which shall include for purposes of this Article 2, permitted assignees or successor owners of Covered Securities as set forth in Section 8.1) holding at least fifty percent (50%) of the Non-Restricted Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Non-Restricted Securities of such Restricted Shareholders having an anticipated aggregate offering price, net of Selling Expenses, of at least $2 million, then the Company shall (i) within ten (10) days after the consummation of a mergerdate such request is given, consolidation, tender offer, sale of assets or other disposition of the Company give notice thereof (“Demand Notice”) to all Restricted Shareholders holding Non-Restricted Securities other than pursuant to the Merger Agreement, Initiating Restricted Shareholders; and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Shareholders, file a Form S-3 registration statement under the Securities Act covering all Non-Restricted Securities requested to be included in such registration by any other Restricted Shareholders, as specified by notice given by each such Restricted Shareholder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(b), 2.1(c), and Section 2.3. The Company shall use reasonable best efforts to cause such Form S-3 registration statement to be declared effective by the SEC as soon as practicable after filing.
(b) Notwithstanding the foregoing obligations, if the Company furnishes to Restricted Shareholders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration 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, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Shareholders is given; provided, however, that the Company may not invoke this right more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such sixty (60) day period other than an Excluded Registration.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Section 2.1(a) (i) during the period that is ninety (90) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeeffective date of, a Company-initiated registration, provided, that the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included is actively employing in such registration), the Company shall, subject to Section 2(c) below, promptly use its best good faith commercially reasonable efforts to effect cause such registration under the Securities Act of the Registrable Shares which statement to become effective; or (ii) if the Company has been so requested effected a registration pursuant to register.
Section 2.1(a) within the twelve (b12) Anything contained in Section 2(a) to month period immediately preceding the contrary notwithstanding, the Company date of such request. A registration shall not be obligated to effect pursuant to counted as “effected” for purposes of this Section 2(a2.1(c) any registration under until such time as the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any applicable registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within by the prior 90 days;
(ii) SEC, unless the Company may delay Initiating Restricted Shareholders withdraw their request for such registration, elect not to pay the filing or effectiveness of any registration expenses therefor, and forfeit their right to one demand 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 2.6, in which case such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a withdrawn registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count counted as a registration statement initiated pursuant to this Section 2 “effected” for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession2.1(c).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Autobytel Inc), Shareholders Agreement (Autobytel Inc)
Demand Registration. (a) If, following After the earlier closing of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition an underwritten offering of the Common Stock, if at any time the Company other is requested in writing by the holders of not less than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination 67% of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor Registration Stock to effect the registration under the Securities Act of Registrable Sharesat least 33 1/3% of the Registration Stock, thenthe Company shall promptly give written notice of such proposed registration to all record holders of Registration Stock. Such holders shall have the right, upon the by giving written request, delivered notice to the Company (which request shall specify within 30 days from receipt of the number of Registrable Shares proposed Company's notice, to be elect to have included in such registration)registration such of their Registration Stock as such holders may request in such notice of election. Thereupon, the Company shall, subject to Section 2(c) belowas expeditiously as possible, promptly use its best efforts to effect such registration the registration, on a form of general use under the Securities Act Act, of the Registrable Shares all shares of Registration Stock which the Company has been so requested to register; provided, however, that if the holders of not less than 67% of the Registration Stock shall so request (and at least 50% of the Registration Stock is being registered), the Company shall file such registration statement pursuant to Rule 415 or any successor rule or regulation under the Securities Act, so as to permit the continuous or delayed offering of the Registration Stock in accordance with the intended method of disposition specified in the notice of the exercise of rights under this Section 8.2(a), to the extent such offering qualifies under such rule or regulation, but in no event shall the Company be required to maintain the effectiveness of such registration statement beyond a two year period. The Company shall be obligated to cause to become effective one registration statement pursuant to which Registration Stock is sold under this Section 8.2(a).
(b) Anything In addition and not in limitation of the rights set forth in Sections 8.1(b) and 8.2(a), at such time as the Company shall have qualified for the use of a short form Form S-3 in an offering solely for the accounts of persons other than the Company (or any similar form or forms promulgated by the Securities and Exchange Commission), the holders of not less than 67% of the Registration Stock shall have the right to request an unlimited number of registrations on Form S-3 or other similar forms. Holders shall have the right, by giving written notice to the Company within 20 days from receipt of notice from the Company of such request, to elect to have included in such registration such of their Registration Stock as such holders may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration, on Form S-3 of all shares of Registration Stock which the Company has been requested to register. The Company shall not be required to effect any such registration more than once every twelve months. Registrations effected on Form S-3 shall not be considered to be demand registrations pursuant to Section 8.2(a) hereof.
(c) The Company may include in a registration requested under this Section 8.2 any additional authorized shares of the Common Stock of the Company, whether or not issued, for sale by the Company or for sale by others; provided, however, that such shares shall not be included to the extent that the holders of a majority of the shares of Registration Stock included therein determine in good faith that the inclusion of such shares will interfere with the successful marketing of the shares of Registration Stock to be included therein; and, provided, further, that, upon the election of the holders of a majority of the shares of Registration Stock included therein, or if the number of shares to be so included equals or exceeds the number of shares of Registration Stock included therein by the holders of Registration Stock, such registration shall be deemed to be a registration pursuant to Section 8.1(b) hereof.
(d) The underwriter and the terms of the underwriting for any registration pursuant to this Section 8.2 shall be mutually acceptable to the Company and the Investor.
(e) Notwithstanding anything contained in Section 2(a) this Agreement to the contrary notwithstandingcontrary:
(i) The Company reserves the right to delay any such registration pursuant to Section 8 for a period of not more than sixty days, or to withhold efforts to cause such registration statement to become effective for a period of not more than sixty days, if the Board of Directors of the Company determines in good faith that such registration might (A) interfere with or affect the negotiation or completion of any material transaction that is being contemplated by the Company, or (B) involve initial or continuing disclosure obligations materially adverse to the best interests of the Company's shareholders. If, after a registration statement becomes effective, the Company advises the holders of the Registration Stock covered by such registration statement that the Company considers it appropriate for the registration statement to be amended, the holders of such shares shall suspend any further sales of their registered shares until the Company advises them that the registration statement has been amended. The time periods referred to in this Section 8 shall be extended for an additional number of business days during which the rights to sell shares was suspended.
(ii) The Company shall not be obligated to effect file a registration statement pursuant to Section 2(a) 8.2 within three months after the effective date of any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated which piggyback rights were granted pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession8.1.
Appears in 2 contracts
Sources: Convertible Debenture and Warrant Purchaser Agreement (Divicore Inc), Convertible Debenture and Warrant Purchase Agreement (Divicore Inc)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested by the Investor Investors holding at least 20% of the total number of outstanding Restricted Shares (assuming conversion of all Debentures) to effect the a registration under the Securities Act of Registrable SharesRestricted Shares in accordance with this Section, then, upon then the Company shall promptly give written request, delivered notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Restricted Shares requested to be included in such proposed registration by such holders who respond in writing to the Company Company's notice within 15 days after delivery of such notice (which request response shall specify the number of Registrable Restricted Shares proposed to be included in such registration and the intended method of distribution, which may be pursuant to a shelf registration), the . The Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such registration on an appropriate form, including Form S-2, if available, under the Securities Act of the Registrable Restricted Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; provided, -------- however, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration ------- under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts file more than three registration statements in total pursuant to this Section, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to 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;
days or (iiB) the Company may delay has determined in good faith that the filing or effectiveness of any a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for a period of up preserving as confidential, such filing to be delayed until the date which is 90 days after the date of a such request for registration pursuant to this Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, 4(a); provided that the company Company may only so delay the filing or -------- effectiveness of a particular Registration Statement once pursuant to clause (A) above and once registration statement pursuant to this clause (BSection 5(a)(ii)(B) in on one occasion during any 18-twelve month period; and;
(iii) with respect to any the registration pursuant to Section 2(a)this Section, the Company may include in such registration any Primary Shares or Other Shares; PROVIDEDprovided, HOWEVERhowever, that if the managing -------- ------- underwriter advises the Company in writing that the inclusion of all Registrable Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) firstFirst, the Registrable Restricted Shares held by all ----- Investors, pro rata based upon the number of Restricted Shares owned by each such Investor at the time of such registration;
(b) The Investors requesting that its Registrable Shares be included in such a registration pursuant to this Section 2(a);may, in the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such Investors shall select one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the Company. The Company shall, together with all Investors proposing to sell Restricted Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(Bc) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from by the Investor; PROVIDEDInvestors holding a majority of the Restricted Shares to be included in such registration under the following circumstances:
(A) If such registration statement is rescinded prior to the filing date, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause paragraph (ia) above;
(B) If such registration statement is rescinded after the filing date but prior to its effective date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above if the participating Investors (x) have reimbursed the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company of such fact and provided further requested that no request the Company correct such alleged misstatement or omission and (3) the Company has refused to register Registrable Securities may be made correct such alleged misstatement or omission; and
(C) A registration shall not count as a registration statement initiated pursuant to this Section 2(afor purposes of paragraph (a) for a period above unless it becomes effective and the participating Investors are able to sell at least 80% of 180 days from the date of Restricted Shares sought to be included in such recessionregistration statement.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Boss Investment LLC), Investors' Rights Agreement (Building One Services Corp)
Demand Registration. (a) IfSubject to the restrictions set forth below, following the earlier of (i) if at any time after the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeinitial Business Combination, the Company shall be requested receive from the Holders (the "Requesting Holders") owning at least twenty-five percent (25%) of the then outstanding shares of Registrable Securities as of the date of the request, a written request to register at least fifteen percent (15%) of the aggregate number of Registrable Securities owned by all of the Investor Requesting Holders as of the date of such request, then the Company will give notice of such request to all Holders within ten (10) days of receiving such request and shall effect as soon thereafter as practicable, and in any event within forty-five (45) days of the registration receipt of such request, the Registration under the Securities Act of all Registrable SharesSecurities which any Holder requests to be registered except as provided in Section 2.03 below. The Company shall not be obligated to effect, thenor to take any action to effect, upon any such Registration pursuant to this Section 2.01:
(a) During the written request, delivered period starting with the date sixty (60) days prior to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act Company's good faith estimate of the Registrable Shares which 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 has been so requested delivered notice of such Company-initiated Registration to register.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; or
(b) Anything contained if the Holders have requested an Underwritten Registration, the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or
(c) if in Section 2(a) the good faith judgment of the Board, such Registration would be seriously detrimental to the contrary notwithstandingCompany and the Board concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period. Notwithstanding the foregoing, the Company shall ensure that no such Registration shall become effective with respect to any Registrable Securities subject to an applicable Lock-up Period and/or Warrant Exercise Restriction until after the expiration of the applicable Lock-up Period and/or Warrant Exercise Restriction, as the case may be. Furthermore, the Company shall not be obligated required to effect pursuant more than three (3) Registrations, which may be either Long-Form Registrations or Short-Form Registrations, under this Section 2.01 on behalf of the Holders; provided, however, that a Registration shall not be counted for such purposes unless such Long-Form Registration has become effective and all of the Registrable Securities requested by the Requesting Holders to Section 2(a) any registration under be registered on behalf of the Securities Act except Requesting Holders in such Long-Form Registration have been sold, in accordance with the following provisions:
(iSection 3.01(a) of this Agreement; and provided, further, however, that the Company shall will not be obligated to use its best efforts to file and cause to become effective effect any such Short-Form Registration:
(Aa) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on if Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and S-3 is not withdrawn or has been declared effective within the prior 90 daysavailable for such offering;
(iib) if in the good faith judgment of the Board, such Registration would be seriously detrimental to the Company may delay and the Board concludes, as a result, that it is essential to defer 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists Registration Statement at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in shall furnish to such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if Holders a certificate signed by the managing underwriter advises President of the Company stating that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) firstgood faith judgment of the Board, the Registrable Shares held by the Investor requesting that its Registrable Shares it would be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice seriously detrimental to the Company from for such Registration Statement to be filed in the Investor; PROVIDEDnear future and that it is, HOWEVERtherefore, that essential to defer the filing of such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if Registration Statement. In such event, the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company right to defer such filing (except as provided in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(asubparagraph (a) above) for a period of 180 not more than one hundred eighty (180) days from after receipt of the date request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period;
(c) if the Company has effected one (1) Short-Form Registration within the six (6) month period prior to the current request for Short-Form Registration; or
(d) if the Registrable Securities to be covered by such recessionregistration statement do not, in the aggregate, exceed $500,000.
Appears in 2 contracts
Sources: Registration Rights Agreement (National Energy Resources Acquisition CO), Registration Rights Agreement (National Energy Resources Acquisition CO)
Demand Registration. (a) If, following at any time more than one (1) year after the earlier date of this Agreement, Company receives written notice from Investor requesting that Company file a registration statement under the Act covering the registration of at least fifty percent (i50%) of the consummation Shares then owned by Investor, Company will use its best efforts to effect the registration under the Act of a mergerall Shares which investor requests to be registered, consolidation, tender offer, to the extent necessary to permit the legally permissible sale of assets 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 a part of the Company other than request made pursuant to this Section 2. The underwriter selected by Investor shall be reasonably acceptable to Company. In such event, the Merger Agreementright 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 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.
(iic) 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 the termination receipt of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless request of the reasons thereforeinvestor; provided, the however, that Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included may not utilize this right more than once in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerany twelve-month period.
(bd) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall will not be obligated to prepare, file or to take any action to effect any registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions2:
(i) Within one year from the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 daysdate hereof;
(ii) the After Company may delay the filing or effectiveness of any registration statement for has effected a period of up to 90 days after the date of a request for prior registration pursuant to Section 2(a) if at the time of this Agreement and such request (A) the Company is engaged, registration has been declared or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month periodordered effective; andor
(iii) with respect to any registration pursuant to Section 2(a), During the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere period starting with the successful marketing date ninety (including pricing90) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded days prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes Company's good faith estimate of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of, a registration subject to Sections 1 or 2 hereof; provided that Company is using reasonable efforts to cause such recessionregistration statement to become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Image Entertainment Inc), Registration Rights Agreement (Image Entertainment Inc)
Demand Registration. (a) IfSubject to the conditions of this Section 2.1, following if the earlier Company shall receive a written request from the Holders of at least fifty percent (50%) of the Registrable Securities (the “Initiating Holders”) that the Company file a registration statement on Form S-1 or Form F-1 under the Securities Act with an aggregate offering price, net of Selling Expenses, in excess of $15,000,000, then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders, and, subject to the limitations of this Section 2.1, effect, as expeditiously as reasonably possible, and in any event within sixty (60) days of the receipt of such request, make an initial filing with the SEC of a registration statement under the Securities Act (or, if eligible, a draft registration statement) of all Registrable Securities that all Holders request to be registered.
(b) The Company shall not be required to effect a registration pursuant to this Section 2.1:
(i) prior to the consummation of a merger, consolidation, tender offer, sale of assets or other disposition 181st day following the effective date of the Company other than pursuant registration statement pertaining to the Merger Agreement, and Initial Offering;
(ii) after the Company has effected two (2) registrations pursuant to this Section 2.1, and such registrations have been declared or ordered effective;
(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, and ending on the date ninety (90) days after following the termination effective date of the Merger Agreement or the failure registration statement pertaining to consummate the transactions contemplated thereby regardless of the reasons thereforea Company-initiated public offering, other than pursuant to a Special Registration Statement; provided that the Company shall be requested by the Investor makes reasonable good faith efforts to effect the cause such registration under the Securities Act statement to become effective;
(iv) if within thirty (30) days of Registrable Shares, then, upon the receipt of a written request, delivered request from Initiating Holders pursuant to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registrationSection 2.2(a), the Company shallgives notice to the Holders of the Company’s intention to file a registration statement for a public offering, subject other than pursuant to a Special Registration Statement within sixty (60) days from the date of the initial request from the Initiating Holders;
(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2(c) below2.1 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, promptly use it would be detrimental to the Company and its best efforts to effect shareholders for such registration under statement to be effected at such time because such action would (a) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Securities Act Company; (b) require premature disclosure of the Registrable Shares which material information that the Company has been so requested to register.
a bona fide business purpose for preserving as confidential; or (bc) Anything contained in Section 2(a) to the contrary notwithstanding, render the Company shall not be obligated unable to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance comply with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated requirements under the Securities Act or Exchange Act, in which event the Company shall have the right to defer such filing for a period of not more than forty-five (45) days after receipt of the request of the Initiating Holders; provided that such right to delay a request shall be exercised by the Company not more than once in any successor forms theretotwelve (12) month period, and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such forty-five (45) day period other than pursuant to which Primary Shares are a Special Registration Statement; or
(vi) if the initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 or were sold has been filed and Form F-3 pursuant to a request made pursuant to Section 2.3 below. A registration shall not withdrawn or be counted as “effected” for purposes of this Subsection 2.1(b) until such time as the applicable registration statement has been declared effective within the prior 90 days;
(ii) 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionSEC.
Appears in 2 contracts
Sources: Registration Rights Agreement (Achilles Therapeutics PLC), Registration Rights Agreement (Achilles Therapeutics LTD)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant Subject to the Merger Agreementconditions of this Section 4.1, and if the Corporation shall receive at any time after one hundred eighty (ii) ninety (90180) days after the termination effective date of an initial public offering of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless Common Stock, a written request from Investor Parties holding a majority of the reasons therefore, Common Stock on a Fully Diluted Basis held by all Investor Parties that the Company shall be requested Corporation file a registration statement under the Securities Act covering the registration of Registrable Securities held by the Investor Parties with an anticipated aggregate offering price (net of underwriting discounts and commissions) of at least US$10,000,000, then the Corporation shall, subject to effect the limitations of this Section 4.1, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Shares, then, upon Securities that the Investor Parties request to be registered in a written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to Notwithstanding the contrary notwithstandingforegoing, the Company Corporation shall not be obligated required to effect a registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions4.1:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) in any registration statement during any period particular jurisdiction in which any other registration statement (other than on Form S-4 or Form S-8 promulgated the Corporation would be required to execute a general consent to service of process in effecting such registration, unless the Corporation is already subject to service in such jurisdiction and except as may be required under the 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;Act; or
(ii) after the Company may delay Corporation has effected three (3) registrations pursuant to this Section 4.1, and such registrations have been declared or ordered effective; or
(iii) during the period starting with the date sixty (60) days prior to the Corporation’s good faith estimate of the date of the filing or effectiveness of any and ending on a date one hundred eighty (180) days following the effective date of a Corporation-initiated registration subject to Section 4.2 below, provided that the Corporation is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Corporation shall furnish to Investor Parties a certificate signed by the Corporation’s Chief Executive Officer or Chairman of the Board stating that in the good faith judgment of the Board, it would be materially detrimental to the Corporation and its stockholders for such registration statement to be effected at such time, in which event the Corporation shall have the right to defer such filing for a period of up to 90 not more than sixty (60) days after the date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days receipt of the time request of the Investor Parties, provided that such requestright shall be exercised by the Corporation not more than once in any twelve (12)-month period and provided further that the Corporation shall not register any securities for the account of itself or any other stockholder during such sixty (60) day period (other than a registration relating solely to the sale of securities of participants in a Corporation stock plan, a registration statement in respect relating to a corporate reorganization or transaction under Rule 145 of the Securities Act, a firm commitment underwritten public offering of Primary Shares in which registration on any form that does not include substantially the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed same information as would be required to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes covering the sale of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by Registrable Securities, or a registration in which the Company in connection with such rescinded registration and provided further only Common Stock being registered is Common Stock issuable upon conversion of debt securities that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionare also being registered).
Appears in 2 contracts
Sources: Stockholders Agreement (Ivanhoe Electric Inc.), Stockholders Agreement (Ivanhoe Electric Inc.)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant Subject to the Merger Agreementrestrictions set forth below, and (ii) ninety (90) days if at any time after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeProspectus Date, the Company shall be requested receive from the Holders (the "Requesting Holders") owning at least five percent (25%) of the then outstanding shares of Registrable Securities as of the date of the request, a written request to register at least fifteen percent (15%) of the aggregate number of Registrable Securities owned by all of the Investor Requesting Holders as of the date of such request, then the Company will give notice of such request to all Holders within ten (10) days of receiving such request and shall effect as soon thereafter as practicable, and in any event within forty-five (45) days of the registration receipt of such request, the Registration under the Securities Act of all Registrable SharesSecurities which any Holder requests to be registered. The Company shall not be obligated to effect, thenor to take any action to effect, upon any such Registration pursuant to this Section 2.01:
(a) During the written request, delivered period starting with the date sixty (60) days prior to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act Company's good faith estimate of the Registrable Shares which 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 has been so requested delivered notice of such Registration to register.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; or
(b) Anything contained if the Holders have requested an Underwritten Registration, the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or
(c) if in Section 2(a) the good faith judgment of the Board, such Registration would be seriously detrimental to the contrary notwithstandingCompany and the Board concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period. Notwithstanding the foregoing, the Company shall ensure that no such Registration shall become effective with respect to any Registrable Securities subject to an applicable Lock-up Period until after the expiration of the applicable Lock-up Period. Furthermore, the Company shall not be obligated required to effect pursuant more than three (3) Registrations, which may be either Long-Form Registrations or Short-Form Registrations, under this Section 2.01 on behalf of the Holders; provided, however, that a Registration shall not be counted for such purposes unless such Long-Form Registration has become effective and all of the Registrable Securities requested by the Requesting Holders to Section 2(a) any registration under be registered on behalf of the Securities Act except Requesting Holders in such Long-Form Registration have been sold, in accordance with the following provisions:
(iSection 3.01(a) of this Agreement; and provided, further, however, that the Company shall will not be obligated to use its best efforts to file and cause to become effective effect any such Short-Form Registration:
(Aa) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on if Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and S-3 is not withdrawn or has been declared effective within the prior 90 daysavailable for such offering;
(iib) if in the good faith judgment of the Board, such Registration would be seriously detrimental to the Company may delay and the Board concludes, as a result, that it is essential to defer 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists Registration Statement at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in shall furnish to such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if Holders a certificate signed by the managing underwriter advises President of the Company stating that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) firstgood faith judgment of the Board, the Registrable Shares held by the Investor requesting that its Registrable Shares it would be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice seriously detrimental to the Company from for such Registration Statement to be filed in the Investor; PROVIDEDnear future and that it is, HOWEVERtherefore, that essential to defer the filing of such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if Registration Statement. In such event, the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company right to defer such filing (except as provided in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(asubparagraph (a) above) for a period of 180 not more than one hundred eighty (180) days from after receipt of the date request of the Holders; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period;
(c) if the Company has effected one (1) Short-Form Registration within the six (6) month period prior to the current request for Short-Form Registration; or
(d) if the Registrable Securities to be covered by such recessionregistration statement do not, in the aggregate, exceed $500,000.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hicks Acquisition CO I Inc.), Registration Rights Agreement (Hicks Acquisition CO I Inc.)
Demand Registration. (a) IfIf the Company shall receive, following at any time after the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition effective date of the Company other than pursuant to the Merger Agreement, and registration statement for a Qualified IPO or (ii) ninety (90October 14, 2023, a written request from the record Holder(s) days after the termination of a majority of the Merger Agreement or shares of Preferred Stock then outstanding, including Common Stock issued on conversion of Preferred Stock, and the failure to consummate shares of Conversion Common Stock then outstanding, voting together (on a combined and as-if converted basis) (the transactions contemplated thereby regardless “Initiating Holders”), that the Company file a registration statement under the Securities Act (the “Registration Request”), then the Company shall:
(i) within 10 days of the reasons thereforereceipt of the Registration Request, give written notice of such request to all Holders that such registration is to be effected (the Company shall be requested by the Investor “Registration Notice”); and
(ii) use its best efforts to effect as soon as practicable, and in any event within 90 days of the receipt of the Registration Request, the registration under the Securities Act of all Registrable SharesSecurities that the Holders request to be registered in the Registration Request and such additional Registrable Securities for which it has received written requests to register by such other Holders within 45 days after delivery of the Registration Notice, then, upon the written request, delivered subject to the limitations of subsection 1.2(b).
(b) If the Company is required to use Form S-1 (which or similar forms promulgated after the date hereof), the Company shall be obligated to (i) proceed with filing the registration statement only if the registration to be effected pursuant to the Registration Request has anticipated aggregate gross offering proceeds of at least $10,000,000 and (ii) prepare, file and cause to become effective, at the sole expense of the Company, no more than two (2) registration statements on Form S-1 (or similar forms promulgated after the date hereof) pursuant to Registration Requests made under this Section 1.2. Once the Company has prepared, filed and caused to become effective two (2) registrations on Form S-1, at its sole expense, it shall still be obligated to comply with this Section 1.2, but the expense of any such registration shall be borne by the Holders participating in such registration.
(c) If the Initiating Holders intend to distribute the Registrable Securities covered by such request by means of an underwriting, they shall specify so advise the Company as a part of their Registration Request and the Company shall include such information in the Registration Notice. The underwriter will be selected by the Company and a majority in interest of the Initiating Holders. Notwithstanding any other provision of this Section 1.2, if the underwriter advises the participating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the number of shares of Registrable Shares proposed Securities that may be included in the underwriting shall be allocated pro rata among all participating Holders according to the total amount of securities entitled to be included therein owned by such Holders; provided, however, that the number of shares of Registrable Securities to be included in such registration)underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 1.2 within thirty (30) days of the Registration Request a certificate signed by the President and Chief Executive Officer of the Company stating that (i) the Company pursuant to an action approved by the Board already has a present plan to commence preparation of a registration statement, other than a Special Registration Statement, and to file the same within ninety (90) days, or (ii) in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed on or before the date filing would be required and it is therefore essential to defer the filing of such registration statement, the Company shallshall have the right to defer taking action with respect to such filing for a period of not more than 60 days from the date of the certificate required herein; provided, subject to Section 2(chowever, that the Company may not utilize this right more than twice in any 12-month period.
(e) below, promptly use its best efforts to effect such registration under In the Securities Act event that the Holders of a majority of the Registrable Shares Securities for which registration has been requested pursuant to this Section 1.2 determine for any reason not to proceed with a registration at any time before a registration statement has been declared effective by the Commission, and such registration statement, if theretofore filed with the Commission, is withdrawn with respect to the Registrable Securities covered thereby, and, unless the withdrawal is based on a material adverse change in the condition, business or prospects of the Company has been from that known to the Holders at the time of their registration request, the Holders of such Registrable Securities agree to bear their own expenses incurred in connection therewith and to reimburse the Company for the expenses incurred by it attributable to the registration of such Registrable Securities, and, if such Holders in fact so requested reimburse the Company, then the Holders of such Registrable Securities shall not be deemed to registerhave exercised their right to require the Company to register Registrable Securities pursuant to this Section 1.2.
(bf) Anything contained in Section 2(a) to the contrary notwithstandingIn addition, the Company shall not be obligated to effect effect, or to take any action to effect, any registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions1.2:
(i) during the period starting with the date of filing of, and ending on a date 180 days after the effective date of, a registration filed in connection with the Company’s Qualified IPO of its Common Stock; provided that the Company shall not be obligated to use its best is actively employing in good faith all reasonable efforts to file and cause such registration statement to become effective effective; or
(Aii) more than two registration statements initiated if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2(a)1.11 below.
(g) If, or (B) any at the time a Registration Request is received by the Company, the Company has already determined to proceed with the actual preparation and filing of a registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant in connection with the Company’s proposed offer and sale for cash of its securities, the Registration Request shall be deemed to which Primary Shares are to be or were sold has have been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after the date of a request for registration given pursuant to Section 2(a) if at 1.3 rather than this Section 1.2, and the time rights and obligations of such request (A) the Holders and the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration Registration Request shall be included in the following order:
(A) first, the Registrable Shares held governed by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession1.3 hereof.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Intuity Medical, Inc.), Investors’ Rights Agreement (Intuity Medical, Inc.)
Demand Registration. (a) If, At any time following the earlier date of this Agreement and upon written notice from a Holder or Holders of at least twenty percent (i20%) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Registrable Securities (without giving effect to any limitation on exercise or conversion) in the manner set forth in Section 11(h) hereof requesting that Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable Shares, then, upon the written request, delivered to the Company Securities held by such Holder as described in Section 2(b) (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registrationSecurities), the Company shall, subject to Section 2(c) below, promptly shall use its reasonable best efforts to effect such 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 Registrable Shares which 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 has been so 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 to registerregistration 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) Anything contained 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 contrary notwithstandingpublic 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 effect file more than two (2) registration statements under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any event if such a registration request is for a number of Registrable Securities which have an aggregate market value less than $1 million. If such a request shall be for an underwritten offering, such a request must be for a number of Registrable Securities which have an aggregate market value of at least $5 million.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the 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 shares of Registrable Securities which were the subject matter of the request; (C) 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 court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, less than ninety (90%) percent of the Registrable Securities requested to be registered can be completely distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Company shall have the right to designate the underwriter or underwriters, including the lead managing underwriter of such underwritten offering, subject to the reasonable approval of the Holders.
(d) Holders other than the Holder initiating the demand pursuant to Section 2(a) any registration under the Securities Act except in accordance and holders of other registrable securities with the following provisions:
(i) the right to participate in a Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period shall have the right to include their shares of Registrable Securities or other registrable securities, as the case may be, in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), . In connection with those registrations in which multiple Holders or holders of other registrable securities with the Company may include right to participate in such registration any Primary Shares or Other Shares; PROVIDED(“Piggy-back Rights Holders”) participate, HOWEVERin the event the facilitating broker/dealer or, that if in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the Company that number of shares to be sold, the inclusion number of all Registrable Shares, Primary Shares and Other Shares proposed shares to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares sale or underwriting and Other Shares proposed to be included in such registration shall be included in allocated pro rata among the following order:Holders and the holders seeking registration pursuant to piggy-back registration rights otherwise granted by Company on the basis of the estimated proceeds from the sale of the securities covered by such registration.
(Ae) first, Company shall have the right to cause the registration of additional securities for sale for the account of Company in any registration of Registrable Shares held Securities requested by the Investor requesting that its Registrable Shares be included in such registration a Holder pursuant to Section 2(a);
) which involves an underwritten offering; provided that Company shall not have the right to cause the registration of such additional securities if such Holder is advised in writing (Bwith a copy to Company) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated lead managing underwriter designated pursuant to this Section 2 for purposes 2(c) that, in such firm’s good faith opinion, registration of clause (isuch securities in addition to those securities included pursuant to Sections 2(a)-(d) above if hereof would materially adversely affect the Company shall have been reimbursed for all out-of-pocket expenses incurred by offering and sale of the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of then contemplated by such recessionHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement (RS Properties I LLC), Registration Rights Agreement (Sands Brothers Venture Capital Ii LLLC)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant Subject to the Merger Agreementrestrictions set forth below, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, if at any time the Company shall be requested receive from Holder a written request to register at least fifty percent (50%) of the Registrable Securities owned by the Investor to Holder (or its respective successors and permitted assigns) as of the date of such request, then the Company shall effect as soon thereafter as practicable, and in any event within fifteen (15) days of the registration receipt of such request, the Registration under the Securities Act of all Registrable SharesSecurities which Holder requests to be registered. The Company shall not be obligated to effect, thenor to take any action to effect, upon any such registration pursuant to this Section 2.01:
(a) during the written request, delivered period starting with the date sixty (60) days prior to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act Company's good faith estimate of the Registrable Shares which 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 has been so requested delivered notice of such Registration to register.the Holder prior to its receipt of the Holder's 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; or
(b) Anything contained if the offering cannot be made on Form S-3 for any reason other than the Company's failure to timely file its period reports under the Exchange Act; or
(c) if in Section 2(a) the good faith judgment of the Board of Directors of the Company, such Registration would be seriously detrimental to the contrary notwithstandingCompany and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such Registration Statement at such time, and the Company shall furnish to Holder a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is, therefore, essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing (except as provided in subparagraph (a) above) for a period of not more than one hundred eighty (180) days after receipt of the request of the Holder; provided, that the Company shall not defer its obligation in this manner more than twice in any 12-month period. Furthermore, the Company shall not be obligated required to effect pursuant more than two (2) Registrations under this Section 2.01 on behalf of Holder; provided, that a Registration shall not be counted for such purposes unless such Registration has become effective and all of the Registrable Securities to Section 2(a) any registration under the Securities Act except be registered on behalf of Holder have been sold, in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing3.01(a) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.Schedule A.
Appears in 2 contracts
Sources: Warrant Agreement (Decorize Inc), Warrant Agreement (Decorize Inc)
Demand Registration. (a) IfExcept as provided in Section 2.1(b), following upon the earlier of (i) Investor’s written request that the consummation of a merger, consolidation, tender offer, sale of assets or other disposition Company effect pursuant to this Section 2 the registration of the Company other than pursuant Registrable Securities under the Securities Act (which request shall specify the number of Registrable Securities to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforebe registered), the Company shall be requested by the Investor use its best efforts to effect the registration under the Securities Act of the Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares Investor which the Company has been so requested to register.
(b) Anything contained in The Company shall not be obligated to take any action to effect any registration requested by the Investor pursuant to Section 2(a2.1(a) above after the Company has effected one registration pursuant to this Section 2 for all of the Registrable Securities and such registration has been declared or ordered effective and such Registration Statements continues to be effective and available to the contrary notwithstandingInvestor (and its successors and assigns).
(c) Notwithstanding any other provision hereof to the contrary, the a registration requested pursuant to this Section 2 shall not be deemed to have been effected (i) unless it has become effective and remains effective.
(d) The Company shall not be obligated to effect any registration pursuant to this Section 2(a) 2 within 90 days after the effective date of any registration under the Securities Act except in accordance with the following provisions:
(i) underwritten public offering by the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two or of any previous registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under withdrawn at the 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 request of the prior 90 days;
(ii) the Investor. The Company may delay postpone for up to 90 days the filing or the effectiveness of any a registration statement for a period of up to 90 days after the date of a request for registration pursuant to this Section 2(a) 2 if at the time of such request (A) financial advisor and/or underwriter to the Company is engaged, or has bona fide plans certifies to file within 60 days the Investor of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided Securities that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with reasonably be expected to have a material adverse effect on the successful marketing (including pricing) of all Company; provided, however, that in such securities, then event the number Investor of Registrable Shares, Primary Shares and Other Shares proposed to be included in Securities requesting such registration shall be included in the following order:
(A) firstentitled to withdraw such request and, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in if such request is withdrawn, such registration pursuant to Section 2(a);
(B) second, shall not count as the Primary Shares; and
(C) third, the Other Shares. A requested one permitted registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if and the Company shall have been reimbursed for pay all out-of-pocket expenses incurred by the Company Registration Expenses in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionpostponed or withdrawn registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Unusual Machines, Inc.)
Demand Registration. (a) If, following Upon receipt by the earlier of (i) the consummation Company of a merger, consolidation, tender offer, sale request from the Holders of assets or other disposition of the Company other no less than pursuant to the Merger Agreement, and twenty-five percent (ii25%) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
Securities (b) Anything contained in Section 2(a"Demand Holders") to register less than twenty-five percent (25%) of the contrary notwithstandingtotal Registrable Securities, the Company, at such time, shall cause to be registered any of the Registrable Securities that the Holder beneficially owns at the time of the request and desires to have registered; PROVIDED HOWEVER, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the : The Company shall not be obligated to use its best efforts to file and cause to become effective (Ai) more than two registration statements initiated pursuant to Section 2(a)this SECTION 1.2 which becomes effective or which is rescinded by the Demand Holders without reimbursement, or (Bii) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares shares offered by the Company are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the ; The Company may delay the filing or effectiveness of any registration statement for a period of up not to exceed 90 days after the date of a request for registration pursuant to Section 2(athis SECTION 1.2 if (i) if at the time of such request (A) the Company is engaged, or has bona fide fixed plans to file engage within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares its own shares in which the holders Holder of Restricted Registrable Shares may may, to the extent such registration statement is in the registration process, include Registrable Shares pursuant to Section 3 SECTION 1.3 or (ii) the Company shall furnish to the Holder requesting such registration a certificate signed by the President or its General Counsel stating that, in the good faith judgment of the Board of Directors of the Company, that (A) it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed or (B) there exists a Material Transaction exists material development or a potential material development with respect to or involving the Company 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 judgment of the Company be premature or otherwise inadvisable at such time, provided and that the company may only so delay it is therefore essential to defer the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Sharesstatement. A requested registration under this Section 2 SECTION 1.2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from by the InvestorDemand Holders for which a registration demand was received; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) SECTION 1.2 above if the Company Demand Holders shall have been reimbursed the Company for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration. The Company may select any firm of underwriters in connection with a registration and provided further that no request under this SECTION 1.2, which firm of underwriters shall be reasonably acceptable to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionDemand Holders.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the receive from Initiating Holders a written request, delivered to request that the Company (which request shall specify effect any registration with respect to all or at least 25% of the number of issued and outstanding Registrable Shares proposed to be included in such registration)Securities held by Holders, the Company shall, subject :
i. promptly give written notice of the proposed registration to Section 2(c) below, promptly all other Holders; and
ii. as soon as practicable use its best efforts to effect such registration under register (including, without limitation, the execution of an undertaking to file post-effective amendments and any other governmental requirements) all Registrable Securities Act of the Registrable Shares which the Company has been so requested Initiating Holders request to register.
(b) Anything contained in Section 2(a) to the contrary notwithstandingbe registered; provided, that the Company shall not be obligated to effect file a registration statement pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions5.2:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant prior to Section 2(a), or (B) any registration statement during any period in the date which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days is six months after the date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days closing of the time of such request, a registration statement in respect of a firm commitment Company's first underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause securities;
(B) in any 18-month period; andparticular state in which the Company would be required to execute a general consent to service of process in effecting such registration;
(iiiC) within 180 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 shall have been able effectively to register all Registrable Securities as to which registration shall have been requested;
(D) in any registration having an aggregate offering price (before deduction of underwriting discounts and expenses of sale) of less than $5,000,000;
(E) after the Company has effected two such registrations by the Investors and two such Registrations by the Founders pursuant to this Section 5.2 and such registrations have been declared or ordered effective, except as provided in Section 5.3; or
(F) during the period starting with respect 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 registration subject to Section 5.3 hereof; provided that the Company is actively employing in good faith its best efforts to cause such registration statement to become effective; and provided further that the Company may not rely on this Section 5.2(a)(ii)(F) more than once during the term of this Agreement to not register Registrable Securities pursuant to a request made by Initiating Holders pursuant to this Section 5.2. Subject to the foregoing clauses (A) through (F), the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, but in any event within 60 days after receipt of the request or requests of the Initiating Holders and shall use reasonable best efforts to have such registration statement promptly declared effective by the Commission whether or not all Registrable Securities requested to be registered can be included; provided, however, that if 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 and its Stockholders for such registration statement to be filed within such 60-day period and it is therefore essential to defer the filing of such registration statement, the Company shall have an additional period of not more than 60 days after the expiration of the initial 60-day period within which to file such registration statement; provided, that during such time the Company may not file a registration statement for securities to be issued and sold for its own account except as contemplated by Section 5.2(a)(ii)(F) above.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request. In such event, if so requested in writing by the Company, the Initiating Holders shall negotiate with an underwriter selected by the Company with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Initiating Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within 20 days following commencement of such negotiations, a majority in interest of the Initiating Holders may select an underwriter of their choice. The right of any Holder to registration pursuant to Section 2(a), the Company may include 5.2 shall be conditioned upon such Holder's participation in such registration underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The Company shall (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 Primary Shares or Other Shares; PROVIDEDother provision of this Section 5, HOWEVER, that if the managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, the Company shall so advise all Holders, and the number of shares of Registrable Securities that may be included in the inclusion registration and underwriting may be reduced up to an amount that is not less than 25% of all the securities included in such registration and the Registrable SharesSecurities to be included shall be allocated among all Holders thereof in proportion, Primary Shares and Other Shares proposed as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders; provided, however, that securities to be included in such registration would interfere with statement as a result of piggyback registration rights not contained in this Article V as well as any securities to be offered by the successful marketing (including pricing) Company, its officers and employees shall be excluded from the registration statement prior to the exclusion of all any Registrable Securities held by the Holders and further provided that no Registrable Securities held by Holders other than the Founders shall be reduced if any Registrable Securities held by the Founders are included in the registration. If any Holder disapproves of the terms of the underwriting, he may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. If, by the withdrawal of such securitiesRegistrable Securities, then the a greater number of Registrable Shares, Primary Shares and Other Shares proposed to Securities held by other Holders may be included in such registration shall be included in (up to the following order:
(A) first, the Registrable Shares held limit imposed by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(Bunderwriters) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall offer to all Holders who have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register included Registrable Securities may be made pursuant in the registration the right to this Section 2(a) for a period of 180 days include additional Registrable Securities in the same proportion used in determining the limitation as set forth above. Any Registrable Securities which are excluded from the date underwriting by reason of the underwriter's marketing limitation or withdrawn from such recessionunderwriting shall be withdrawn from such registration.
Appears in 1 contract
Demand Registration. (a) If, following At any time after the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) date that is 180 days after the termination of date upon which the Merger Agreement or Registration Statement for use in the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeInitial Public Offering shall have been declared effective, if the Company shall be requested by the Investor holders of at least (i) 5.0% of the then outstanding Common Stock or (ii) $5,000,000 of Restricted Securities proposed to be sold in the registration (based on the proposed offering price thereof) to effect the registration under the Securities Act of Registrable Shares, thenit shall within 10 days of such request give written notice to the other Investors of its requirement to so register such Registrable Shares and, upon the written request, delivered to the Company within 30 days after delivery of any such notice by the Company, of the other Investors to include in such registration Registrable Shares (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below2(b), promptly thereafter use its best commercially reasonable efforts to effect such registration under the Securities Act of the Registrable Shares which that the Company has been so requested to registerregister for sale in accordance with the method of distribution specified in the initiating request. If such method of distribution is an underwritten Public Offering, the Company may designate the managing underwriter for such offering, subject to the approval of those Investors holding a majority of the Registrable Shares requested to be included in such offering (which approval shall not be unreasonably withheld).
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements one Registration Statement initiated pursuant to Section 2(a)) within any one-year period; provided, or that if the Investors were unable to sell at least 50% of the Registrable Shares requested to be included in the last registration pursuant to Section 2(a) as a result of an underwriter's cutback, then additional registrations shall be added to this Section 2(b)(i) until the foregoing condition is satisfied; (B) any registration statement Registration Statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to 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;180 days or (C) any Registration Statement pursuant to Section 2(a) if the Company shall reasonably conclude that the anticipated gross offering price of all Registrable Shares to be included therein would be less than $5,000,000.
(ii) the Company may delay the filing or effectiveness of any registration statement 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 (A) the Company is engaged, or has bona fide plans proposes to file within 60 days of the time of such requestengage, in a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 Material Transaction or (B) the Company's Board of Directors has determined that such registration would have a Material Transaction exists at such time, provided that material adverse effect upon the company may only so delay the filing Company or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month periodits then current business plans; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDEDprovided, HOWEVERhowever, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:order (subject to any senior registration rights applicable to Other Shares):
(A) first, the Registrable Shares held by the Investor Investors requesting that its their Registrable Shares be included in such registration pursuant to Section 2(a), pro rata based upon the number of Restricted Securities owned by each such Investor at the time of such registration; provided, that if the managing underwriter advises the Company that the pro rata inclusion of Registrable Shares held by all Investors would interfere with the successful marketing (including pricing) of such securities, then the managing underwriter may reduce that percentage of Registrable Shares held by Investors that may be included pro rata in the proposed registration;
(B) second, the Primary Shares; and
(C) third, the Other Shares. .
(c) A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from those Investors who initiated the Investorrequest; PROVIDED, HOWEVERprovided, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed (pro rata by the Investors requesting registration or in such other proportion as they may agree) for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and registration; provided further further, that no request such Investors shall not be required to register Registrable Securities may be reimburse the Company if such rescission shall have been caused by, or made pursuant to this Section 2(ain response to, the material adverse effect of an event on the business, prospects, properties, condition (financial or otherwise) for a period or operations of 180 days from the date of such recessionCompany.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of Subject to subparagraphs (i) the consummation of a merger), consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety and (90iii) below and at any time beginning 180 days after the termination date of execution of this Agreement, holders of at least 30% of the Merger Agreement or the failure total number of outstanding Registrable Shares (assuming conversion of all shares of Preferred Stock into Common Stock) may make a written request to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the a registration under the Securities Act of all or a portion of the Registrable Shares, then, upon the written request, delivered to the Company Shares held by such requesting holders in accordance with this Section 2 (which a "Demand Registration"). The request shall -------------------- specify the number of Registrable Shares proposed to be included in such Demand Registration and the intended method of distribution, which may be pursuant to a shelf registration), the . The Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such registration a Demand Registration, as expeditiously as possible, on an appropriate form under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; provided, however, that the Company shall not be -------- ------- obligated to effect pursuant to Section 2(a) any registration Demand Registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts file more than five registration statements in total pursuant to this Section 2, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Registrable Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
days or (iiB) the Company may delay has determined in good faith that the filing or effectiveness of any a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for a period of up preserving as confidential, such filing to be delayed until the date which is 90 days after the date of a such request for registration pursuant to this Section 2(a) if at the time of such request (A) ), provided, that the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing -------- or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once registration statement pursuant to this clause (BSection 2(a)(ii)(B) in on one occasion during any 18twelve-month period; and
(iii) with respect to any registration the Demand Registration pursuant to this Section 2(a)2, the Company may include in such registration any Primary Demand Registration securities that are not Registrable Shares or Other Shares; PROVIDEDif, HOWEVERin the view of the managing underwriter, that if the inclusion thereof will not adversely affect such offering. If such Demand Registration is an underwritten offering and the managing underwriter advises the Company in writing that the inclusion of all Registrable Shares, Primary Shares and the Other Shares proposed to be included in such registration Demand Registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration Demand Registration shall be included in the following order:
(A) firstFirst, up to the number of Registrable Shares held by requested to be ----- included which in the Investor requesting that its opinion of the managing underwriter can be sold without adversely affecting the marketability of the offering, pro rata among the respective holders thereof on the basis of the amount of Registrable Shares requested to be included in the offering by each such registration pursuant to Section 2(a)holder;
(B) secondSecond, any Other Shares the Primary SharesCompany proposes to be included ------ in the Demand Registration; and
(C) thirdThird, any Other Shares requested to be included in the Other Shares----- Demand Registration by any holder having contractual registration rights.
(b) The holders of Registrable Shares requesting a Demand Registration may, in the notice delivered pursuant to paragraph 2(a) above, elect that such Demand Registration be an underwritten offering. Upon such election, such holders shall select one or more nationally recognized investment banks to act as the managing underwriter and shall select any additional investment banks to be used in connection with such offering, provided that such managing underwriter and investment banks must be reasonably satisfactory to the Company. The Company shall, together with all holders proposing to sell Registrable Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration under this Section 2 request for a Demand Registration may be rescinded prior to such registration being declared effective by the Commission withdrawn by written notice to the Company from by the Investor; PROVIDEDholders a majority of the Registrable Shares to be included in such registration with the following consequences:
(i) If such request for a Demand Registration is withdrawn prior to the filing date of the registration statement, HOWEVER, that such rescinded withdrawn registration shall not count as a registration statement initiated pursuant to this Section 2 Demand Registration for purposes of clause paragraph (ia) above;
(ii) If such request for a Demand Registration is withdrawn after the filing date of the registration statement but prior to its effective date, such withdrawn registration shall not count as a Demand Registration for purposes of paragraph (a) above if the participating holders (x) have reimbursed the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded withdrawn registration and provided further or (y)
(1) reasonably believed that no request the registration statement contained an untrue statement of material fact or omitted to register Registrable Securities may state a material fact required to be stated therein or necessary to make the statements made pursuant to this Section 2(atherein not misleading, (2) for a period of 180 days from notified the date Company of such recessionfact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to correct such alleged misstatement or omission; and
(iii) A registration statement that becomes effective shall count as a Demand Registration for purposes of paragraph (a) above unless (x) the registration statement becomes subject to a stop order, injunction or other order of the Commission or any other governmental agency or court or (y) 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 some act or omission by the holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Apollo Investment Fund Iv Lp)
Demand Registration. (a) If, following After the earlier closing of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition an underwritten offering of the Common Stock, if at any time the Company other is requested in writing by the holders of not less than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination 67% of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor Registration Stock to effect the registration under the Securities Act of Registrable Sharesat least 33 1/3% of the Registration Stock, thenthe Company shall promptly give written notice of such proposed registration to all record holders of Registration Stock. Such holders shall have the right, upon the by giving written request, delivered notice to the Company (which request shall specify within 30 days from receipt of the number of Registrable Shares proposed Company's notice, to be elect to have included in such registration)registration such of their Registration Stock as such holders may request in such notice of election. Thereupon, the Company shall, subject to Section 2(c) belowas expeditiously as possible, promptly use its best efforts to effect such registration the registration, on a form of general use under the Securities Act Act, of the Registrable Shares all shares of Registration Stock which the Company has been so requested to register; provided, however, that if the holders of not less than 67% of the Registration Stock shall so request (and at least 50% of the Registration Stock is being registered), the Company shall file such registration statement pursuant to Rule 415 or any successor rule or regulation under the Securities Act so as to permit the continuous or delayed offering of the Registration Stock in accordance with the intended method of disposition specified in the notice of the exercise of rights under this Section 8.2(a), to the extent such offering qualifies under such rule or regulation, but in no event shall the Company be required to maintain the effectiveness of such registration statement beyond a two year period. The Company shall be obligated to cause to become effective one registration statement pursuant to which Registration Stock is sold under this Section 8.2(a).
(b) Anything In addition and not in limitation of the rights set forth in Sections 8.1(b) and 8.2(a), at such time as the Company shall have qualified for the use of a short form Form S-3 in an offering solely for the accounts of persons other than the Company (or any similar form or forms promulgated by the Securities and Exchange Commission), the holders of not less than 67% of the Registration Stock shall have the right to request an unlimited number of registrations on Form S-3 or other similar forms. Holders shall have the right, by giving written notice to the Company within 20 days from receipt of notice from the Company of such request, to elect to have included in such registration such of their Registration Stock as such holders may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, use its best efforts to effect the registration, on Form S-3 of all shares of Registration Stock which the Company has been requested to register. The Company shall not be required to effect any such registration more than once every twelve months. Registrations effected on Form S-3 shall not be considered to be demand registrations pursuant to Section 8.2(a) hereof.
(c) The Company may include in a registration requested under this Section 8.2 any additional authorized shares of the Common Stock of the Company, whether or not issued, for sale by the Company or for sale by others; provided, however, that such shares shall not be included to the extent that the holders of a majority of the shares of Registration Stock included therein determine in good faith that the inclusion of such shares will interfere with the successful marketing of the shares of Registration Stock to be included therein; and, provided, further, that, upon the election of the holders of a majority of the shares of Registration Stock included therein, or if the number of shares to be so included equals or exceeds the number of shares of Registration Stock included therein by the holders of Registration Stock, such registration shall be deemed to be a registration pursuant to Section 8.1(b) hereof.
(d) The underwriter and the terms of the underwriting for any registration pursuant to this Section 8.2 shall be mutually acceptable to the Company and the Investor.
(e) Notwithstanding anything contained in Section 2(a) this Agreement to the contrary notwithstandingcontrary:
(i) The Company reserves the right to delay any such registration pursuant to Section 8 for a period of not more than sixty days, or to withhold efforts to cause such registration statement to become effective for a period of not more than sixty days, if the Board of Directors of the Company determines in good faith that such registration might (A) interfere with or affect the negotiation or completion of any material transaction that is being contemplated by the Company, or (B) involve initial or continuing disclosure obligations materially adverse to the best interests of the Company's shareholders. If, after a registration statement becomes effective, the Company advises the holders of the Registration Stock covered by such registration statement that the Company considers it appropriate for the registration statement to be amended, the holders of such shares shall suspend any further sales of their registered shares until the Company advises them that the registration statement has been amended. The time periods referred to in this Section 8 shall be extended for an additional number of business days during which the rights to sell shares was suspended.
(ii) The Company shall not be obligated to effect file a registration statement pursuant to Section 2(a) 8.2 within three months after the effective date of any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated which piggyback rights were granted pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession8.1.
Appears in 1 contract
Sources: Convertible Debenture and Warrant Purchase Agreement (Divicore Inc)
Demand Registration. (a) IfAt any time on or after January 1, following 2000, Executive shall have the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of right to request that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act Act, of Registrable Shares, then, upon any or all of the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed Common Stock now or hereafter owned by Executive and whether or not such Common Stock was acquired pursuant hereto(the Common Stock requested to be included in registered is hereinafter referred to as the "Requested Registration Shares"); provided, however, that each such registrationRequested Registration shall cover at least fifty (50) shares of the Common Stock (as presently constituted). In such event, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such registration cause the Requested Registration Shares to be registered under the Securities Act and to effect and to comply with all such qualifications, compliances and requirements as may be necessary to permit the sale or other transfer of such Requested Registration Shares in the Registrable Shares which the Company has been so requested to register.
manner described in such request, including, without limitation, qualifications under applicable Blue Sky or other state securities laws (b) Anything contained in Section 2(a) to the contrary notwithstanding, provided that the Company shall not be obligated required in connection therewith to effect pursuant qualify as a foreign corporation or to Section 2(a) execute a general consent to service of process in any registration under the Securities Act except in accordance with the following provisions:
state); provided, however that (i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two three (3) registration statements initiated in which Requested Registration Shares are sold pursuant to this Section 2(a7(a), or (Bii) in the event that, for any registration statement during any period in which any other registration statement (other reason, less than on Form S-4 or Form S-8 promulgated one-half of the number of Requested Registration Shares shall be registered under the 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;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after the date of in accordance with a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a7(a), then such registration shall not constitute one of the three registration statements referred to in clause (i) above, and (iii) the Company shall not be obligated to effect such registration for a period of 180 ninety (90) days from following the date request by Executive to do so if the Board determines in good faith (and so certifies to the Executive in writing) that the Company is preparing a public offering of securities and that the registration of the Requested Registration Shares would adversely affect the Company's ability to offer its securities to the public, provided, however, the Company shall be entitled to only one such recessionninety (90) day period delay during any twelve (12) month period. In connection with any registration of Common Stock hereunder, the Company may allow any other stockholder of the Company to register shares of Common Stock in the same registration statement; provided that if not all Requested Registration Shares may be included as determined by any managing underwriter, Executive shall be entitled to priority over other stockholders. The Executive's rights under this Section 7 shall survive Executive's employment hereunder and Executive's engagement as a Consultant hereunder, but shall terminate at such time as Executive may, within a three (3) month period, offer and sell all of his Common Stock pursuant to Rule 144 of the Securities Act, or any successor law or regulation thereto, without any adverse effect on the price at which such shares of Common Stock may be sold.
Appears in 1 contract
Demand Registration. (a) IfAt any time after the Company shall have consummated a firm commitment underwritten public offering of the Common Stock of the Company under the Act, following the earlier holders of Registrable Securities (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition constituting at least 30% of the Company other than pursuant to the Merger Agreement, total shares of Registrable Securities then outstanding and (ii) ninety (90) days after having a minimum anticipated offering price of $5,000,000 may request the termination Company to register under the Act all or any portion of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act shares of Registrable Shares, then, upon Securities held by such requesting Holder or Holders for sale on Form S-1 in the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included manner specified in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) notice. Notwithstanding anything to the contrary notwithstandingcontained herein, the Company shall not be obligated to effect effect, or to take any action to effect, any such registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions1.2:
(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 reasonable 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 be obligated to defer its obligation in this manner more than once in any eighteen-month period.
(b) Following receipt of any notice under this Section 1.2, the Company shall immediately notify all holders of Registrable Securities from whom notice has not been received and shall use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated register under the Act, for public sale in accordance with the method of disposition specified in such notice from requesting holders, the number of shares of Registrable Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed specified in such notice (and not withdrawn or has been declared effective within the prior 90 days;
(ii) in all notices received by the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 from other holders within 15 days after the date giving of such notice by the Company). If such method of disposition shall be an underwritten public offering, the holders of a request for registration majority of the shares of Registrable Securities 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. The Company shall be obligated to register Registrable Securities pursuant to this Section 2(a) if at the time of 1.2 on two occasions only; provided, however, that such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, obligation shall be deemed satisfied only when a registration statement covering all shares of Registrable Securities specified in respect notices received and not rescinded 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) The Company and any other holders of Common Stock which the Company shall permit to participate shall be entitled to include in any registration statement referred to in this Section 1.2, for sale in accordance with the method of disposition specified by the requesting Holders, provided the Company and any such holder accept the terms of any underwriting agreed by the initiating Holders, shares of Common Stock to be sold by the Company or such other holders for their own account, except as and to the extent that, in the sole discretion of the managing underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the success of the offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant Securities to Section 3 or (B) a Material Transaction exists at such timebe sold. Except for registration statements on Form S-4, provided that ▇-▇ ▇▇ any successor thereto, the company may only so delay Company will not file with the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in SEC any 18-month period; and
(iii) other registration statement with respect to any registration pursuant to Section 2(a)its Common Stock, the Company may include in such registration any Primary Shares whether for its own account or Other Shares; PROVIDEDthat of other stockholders, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.receipt of a
Appears in 1 contract
Demand Registration. (a) IfIf the Issuer shall receive a written request by the DLJ Entities, following the earlier of (i) the consummation of a mergerChase, consolidation, tender offer, sale of assets or other disposition Summit on behalf of the Company other than pursuant to Summit Investors or the Merger Agreement, and Wind▇ ▇▇▇▇ ▇▇▇estors (iias provided in Section 5.13) ninety (90) days after the termination each of the Merger Agreement or foregoing is referred to as a "DEMAND RIGHT HOLDER;" and the failure Person making the request is referred to consummate herein as the transactions contemplated thereby regardless of "INITIATING SHAREHOLDER") that the reasons therefore, the Company shall be requested by the Investor to Issuer effect the registration under the Securities Act of all or a portion of such Initiating Shareholder's shares of Registrable SharesSecurities, thenand specifying the intended method of distribution thereof, upon then the Issuer shall promptly give written request, delivered notice of such requested registration (a "DEMAND REGISTRATION") at least 30 days prior to the Company (which request shall specify anticipated filing date of the number of Registrable Shares proposed registration statement relating to be included in such registration), Demand Registration to the Company shall, subject to Section 2(c) below, promptly other Shareholders and thereupon will use its best efforts to effect such effect, as expeditiously as possible, the registration under the Securities Act of of:
(i) the Registrable Shares Securities which the Company Issuer has been so requested to register.register by the Initiating Shareholder, then held by the Initiating Shareholder; and
(bii) Anything contained subject to the cut back provisions set forth in Section 2(a5.1(d), all other Registrable Securities of the same type (it being understood that voting and non-voting common stock will be considered the same type) as that to which the request by the Initiating Shareholder relates which any other Shareholder entitled to request the Issuer to effect an Incidental Registration (as such term is defined in Section 5.2) pursuant to Section 5.2 (all such Shareholders, together with the Initiating Shareholder, 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 contrary notwithstandingextent necessary to permit the distribution (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided, that, notwithstanding the foregoing in this Section 5.1(a), if a request made pursuant to Section 5.1(a) would require the Company to effect an Initial Public Offering (disregarding, for these purposes, the $50 million net proceeds reference in the definition of "Initial Public Offering"), the Board must approve such offering in the manner provided in Section 2.4(b); provided further that, subject to Section 5.1(c) hereof, (I) the Company shall not be obligated to effect more than five Demand Registrations for the Summit Investors collectively, three Demand Registrations for the DLJ Entities collectively, five Demand Registrations for the Wind▇ ▇▇▇▇ ▇▇▇estors collectively, or five Demand Registrations for Chase pursuant to this Section 2(a5.1(a), and (II) any registration under in addition to the Securities Act except in accordance with foregoing rights, following the following provisions:
(i) Short-Form Date, the Company number of Short-Form Demand Registrations for the DLJ Entities, Chase, the Summit Investors and the Wind▇ ▇▇▇▇ ▇▇▇estors pursuant to this Section 5.1 shall be unlimited; Second Amended and Restated Investors' Agreement 23 27 and provided further that the Issuer shall not be obligated to use its best efforts effect a Demand Registration with respect to file Common Stock unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration equal at least (x) if such Demand Registration would constitute an Initial Public Offering, $50,000,000, or (y) in any other Public Offering, $20,000,000. In no event will the Issuer be required to effect more than one Demand Registration within any 6 month period. Promptly after the expiration of the 15-day period referred to in Section 5.1(a)(ii) hereof, the Issuer will notify all the Holders to be included in the Demand Registration of the other Holders and cause the number of shares of Registrable Securities requested to become be included therein. The Initiating Shareholder requesting a registration under this Section 5.1(a) may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by providing a written notice to the Issuer revoking such request, in which case such request, so revoked, shall be considered a Demand Registration unless such revocation arose out of the fault of the Issuer, in which case such request shall not be considered a Demand Registration, or unless the participating Shareholders reimburse the Issuer for all costs incurred by the Issuer in connection with such registration.
(b) The Issuer will pay all Registration Expenses in connection with any Demand Registration.
(c) A registration requested pursuant to this Section 5.1 shall not be deemed to have been effected (i) unless the registration statement relating thereto (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated has become effective under the Securities Act or any successor forms theretoand (B) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared remained effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 at least 180 days after the date of a request for registration pursuant to Section 2(a) if at the time of (or such request (A) the Company is engaged, or has bona fide plans to file within 60 days shorter period in which all Registrable Securities of the time of Holders included in such request, a registration have actually been sold thereunder); provided that if after any registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once requested pursuant to this clause Section 5.1 becomes effective (Bx) in such registration statement is interfered with by any 18-month period; and
stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (iiiy) with respect to any registration pursuant to Section 2(a), less than 75% of the Company may include Registrable Securities included in such registration any Primary Shares statement has been sold thereunder, such registration statement shall not be considered a Demand Registration or Other Shares; PROVIDED, HOWEVER, that (ii) if the managing underwriter advises Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(d) such that less than 66 2/3% of the Company that Registrable Securities of the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed Demand Rights Holders sought to be included in such registration would interfere with are included.
(d) If a Demand Registration involves an Underwritten Public Offering and the successful marketing managing underwriter shall advise the Issuer and the Holders that, in its view, (including pricingi) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed shares of Common Stock or Warrants requested to be included in such registration shall (including Common Stock or Warrants which the Issuer proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Common Stock or Warrants owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such Shares can be sold (the "MAXIMUM OFFERING SIZE"), the Issuer will include in such registration, in the following orderpriority listed below, up to the Maximum Offering Size:
(A) first, all 2001 Registrable Securities requested to be registered by any Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of 2001 Registrable Shares held by the Investor requesting that its Registrable Shares Securities so requested to be included in such registration pursuant to Section 2(aregistration);
(B) second, all Registrable Securities (other than 2001 Registrable Securities) requested to be registered by any Demand Rights Holder (allocated, if necessary for the Primary Shares; andoffering not to exceed the Maximum Offering Size, pro rata among Second Amended and Restated Investors' Agreement 24 28 such Demand Rights Holders on the basis of the relative number of Registrable Securities (other than 2001 Registrable Securities) so requested to be included in such registration);
(C) third, the Other Shares. A all Registrable Securities requested registration under this Section 2 may to be rescinded prior to included in such registration being declared effective by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and
(D) fourth, any Common Stock proposed to be registered by the Commission by Issuer.
(e) Upon written notice to each Selling Shareholder, the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as Issuer may postpone effecting a registration statement initiated pursuant to this Section 2 5.1 on one occasion during any period of six consecutive months for purposes of clause a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) above if an investment banking firm of recognized national standing shall advise the Company shall have been reimbursed for all out-of-pocket expenses incurred by Issuer and the Company Initiating Shareholder in connection with such rescinded writing that effecting the registration would materially and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period adversely affect an offering of 180 days from the date securities of such recessionIssuer the preparation of which had then been commenced or (ii) such Issuer is in possession of material non-public information the disclosure of which during the period specified in such notice such Issuer believes would not be in the best interests of such Issuer.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition Upon written notice from time to time by any of the Company other Investor(s) (the "Registering Investors") given no earlier than pursuant 90 days prior to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, Effective Date requesting that the Company shall be requested by the Investor to effect the registration under the Securities Act of all or part of the Registrable SharesSecurities owned beneficially and of record by the Registering Investors, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed Securities, and be simultaneously copied to be any Investor not included in such registrationsaid Registering Investors (the "Request Notification"), the Company shallshall be obliged to file with the U.S. Securities and Exchange Commission (the "SEC") a registration statement within 60 days of the Request Notification and use its commercially reasonable best efforts to cause such registration statement to be declared effective (as promptly as reasonably practicable, but in no event prior to the Effective Date), under the Securities Act, for disposition of such Registrable Securities and the Registrable Securities of any other Investor(s) requesting to include all or part of the Registrable Securities owned beneficially and of record by it in such registration within 10 days of receipt of the Request Notification (such Investor(s) upon such request, shall also be "Registering Investors"), in accordance with the intended method or methods of disposition stated in such request notification; provided that:
(a) if the Company shall have previously effected a registration with respect to Registrable Securities pursuant to this Section 4.1 or Section 4.4 below (and, in the case of registration pursuant to Section 4.4 below, provided that, subject to Section 2(c) below4.4(b), promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so registered all Registrable Securities requested by the Investors pursuant to register.Section 4.4) the Company shall not be required to effect a registration pursuant to this Section 4.1 until a period of 120 days shall have elapsed from the effective date of the most recent such previous registration;
(b) Anything contained if, in Section 2(a) the reasonable judgment of the Company, a registration at the time and on the terms requested would adversely affect any financing by the Company that had been planned by the Company prior to the contrary notwithstandingRequest Notification, the Company shall not be obligated required to effect file any registration statement pursuant to this Section 2(a4.1 until 120 days after completion or abandonment of such financing, provided that the Company may not defer the filing of a registration statement pursuant to this clause (b) or clause (d) below for more than 120 days in the aggregate in any registration under the Securities Act except in accordance with the following provisions:12-month period;
(ic) the Company shall not be obligated required to file a registration statement if, as a result, the Company would be required to include in such registration statement (i) audited financial statements as of any date other than a fiscal year end or any other date as of which the Company shall have audited financial statements or (ii) pro forma financial statements pursuant to Regulation S-X under the Securities Act if such pro forma statements cannot be reasonably prepared in a timely fashion, until such audited financial statements or such pro forma financial statements have been prepared; provided that the Company shall use its best efforts to prepare within 90 days from the Request Notification any audited financial statements or pro forma financial statements required to be included;
(d) if the Company determines in good faith that the filing of a registration statement would require the disclosure of material information which the Company has a good faith business purpose for preserving as confidential or the Company is unable to comply with the SEC requirements, the Company shall not be required to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to this Section 4.1 until the earlier of (i) the date upon which Primary Shares are such material information is disclosed to the public (it being understood that nothing herein shall require such disclosure) or ceases to be material or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 Company makes such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such timegood faith determination, provided that the company Company may only so delay not defer the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once registration statement pursuant to this clause (Bd) or clause (b) above for more than 120 days in the aggregate in any 1812-month period; and
(iiie) with respect any Investor which is not included among the Registering Investors in a given demand and who had not notified the Company within 10 days of receipt of a copy of the Request Notification that it wished to include all or part of the Registrable Securities owned beneficially and of record by it shall be deemed for all purposes to have waived, and be precluded from exercising, any registration rights in the applicable registration pursuant to this Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares4.1; and
(Cf) thirdif, in any case, the Other Shares. A Company shall under any of foregoing clauses (a) through (d) postpone the filing of a registration statement requested registration under this Section 2 may by the Registering Investors, it shall be rescinded prior a condition to such postponement that no executive officer or director of the Company sell any shares owned beneficially or of record by him during the period of such postponement, and the Registering Investors shall have the right for 30 days after receipt of the notice of postponement to withdraw the request for registration being declared effective by the Commission by giving written notice to the Company from Company, and, in the Investor; PROVIDEDevent of such withdrawal, HOWEVER, that such rescinded request for registration shall not count be counted as a registration statement initiated pursuant to this one of the three (3) registrations contemplated under Section 2 for purposes of clause (i4.3(b) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionbelow.
Appears in 1 contract
Demand Registration. (ai) If, following After the earlier of (ix) December 29, 1998 or (y) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of completion by the Company other than of an Initial Public Offering, except as provided in Section 2(b)(ii) below, upon ▇▇▇▇▇▇' written request that the Company effect pursuant to this Agreement the Merger Agreementregistration of Registrable Securities under the Securities Act (which request shall specify the Registrable Securities so requested to be registered, the Proposed Amounts thereof and (ii) ninety (90) days after the termination intended method of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforedisposition by ▇▇▇▇▇▇), the Company shall be requested by the Investor will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of the Proposed Amount of Registrable SharesSecurities, thenfor disposition in accordance with the intended method of disposition stated in such request; PROVIDED, upon HOWEVER, that (A) if in the written requestgood faith judgment of the Board of Directors of the Company, delivered 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇' request in the case of an underwritten public offering or for more than 120 days if such method of disposition is not an underwritten public offering. The Company shall specify be entitled to include in any registration statement filed pursuant to this Section 2(b): (x) securities of the number Company held by any other securities holder of Registrable Shares proposed the Company, and (y) in an underwritten public offering, securities of the Company to be included sold by the Company for its own account, except as and to the extent that (1) in the written opinion of the managing underwriter, which shall be an underwriter of nationally recognized standing (if such registrationmethod of disposition shall be an underwritten public offering), such inclusion would materially adversely affect the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act marketing of the Registrable Shares Securities to be sold by ▇▇▇▇▇▇ or (2) in the written opinion of an investment banker of nationally recognized standing jointly selected by ▇▇▇▇▇▇ and the Company (if such method of disposition is not an underwritten public offering), such inclusion would materially adversely affect the price at which the Company has been so requested Registrable Securities may be sold pursuant to registerthe plan of distribution.
(bii) Anything contained in Section 2(a) to the contrary notwithstanding, the The Company shall not be obligated to take any action to effect any registration requested by ▇▇▇▇▇▇ pursuant to Section 2(a2(b)(i) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective hereof (A) more than after the Company has effected two registration statements initiated such registrations pursuant to Section 2(a)this Agreement and each such registration has been declared or ordered effective, or (B) any registration statement during any the period in which any other registration statement (other than starting with the date 30 days prior to the Company's estimate of the date of filing of, and ending on Form S-4 or Form S-8 promulgated under the 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;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 date 180 days after the effective date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such requestof, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such timeCompany initiated registration, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant Company is using all reasonable efforts to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in cause such registration any Primary Shares statement to become effective, or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of six (6) months after the Company has effected one such registration pursuant to this Agreement and such registration has been declared or ordered effective, such 180 days from day period to commence on the date the registration statement was declared or ordered effective.
(iii) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2(b) shall not be deemed to have been effected (A) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto solely by reason of ▇▇▇▇▇▇' refusal to proceed shall be deemed to have been effected by the Company at ▇▇▇▇▇▇' request unless ▇▇▇▇▇▇ shall have elected to pay all Company Registration Expenses (as defined) in connection with such recessionregistration, (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 court for any reason other than a misrepresentation or an omission by ▇▇▇▇▇▇, 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 some wrongful act or omission, or act or omission in bad faith, by ▇▇▇▇▇▇.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days At any time after the termination of that date which is six (6) months after the Merger Agreement or date upon which the failure to consummate Registration Statement for use in the transactions contemplated thereby regardless of the reasons thereforeInitial Public Offering shall have been declared effective, if the Company shall be requested by the Investor holders of at least 30% percent of the Restricted Securities held by all Investors to effect the registration under the Securities Act of Registrable Shares, thenit shall within 10 days of such request give written notice to the other Investors of its requirement to so register such Registrable Shares and, upon the written request, delivered to the Company within 30 days after delivery of any such notice by the Company, of the other Investors to include in such registration Registrable Shares (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c2(b) below, promptly thereafter use its reasonable best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerregister for sale in accordance with the method of distribution specified in the initiating request. If such method of distribution is an underwritten Public Offering, the Company may designate the managing underwriter for such offering, subject to the approval of those Investors holding a majority of the Registrable Shares requested to be included in such offering (which approval shall not be unreasonably withheld).
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its reasonable best efforts to file and cause to become effective (A) more than two registration statements Registration Statements initiated pursuant to Section 2(a); provided however, that if the Investors were unable to sell at least fifty percent (50%) of the Registrable Shares requested to be included in the last registration pursuant to Section 2(a) as a result of an underwriter’s cutback, then additional registrations shall be added to this Section 2(b)(ii) until the foregoing condition is satisfied, provided further however, that the Company shall not be obligated to effect more than one (1) Registration Statement pursuant to this Section 2(a) within any 12-month period or (B) any registration statement Registration Statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 180 days;
(ii) the Company may delay the filing or effectiveness of any registration statement 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 (Aa) the Company is engaged, or has bona fide plans proposes to file within 60 days of the time of such requestengage, in a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 Material Transaction, or (Bb) the Company’s Board of Directors has determined that such registration would have a Material Transaction exists at such time, provided that material adverse effect upon the company may only so delay the filing Company or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month periodits then current business plans; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDEDprovided, HOWEVERhowever, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor Investors requesting that its their Registrable Shares be included in such registration pursuant to Section 2(a), pro rata based upon the number of Restricted Securities owned by each such Investor at the time of such registration; provided, however, that if the managing underwriter advises the Company that the pro rata inclusion of Registrable Shares held by all Investors would interfere with the successful marketing (including pricing) of such securities, then the managing underwriter may reduce that percentage of Registrable Shares held by Investors that may be included pro rata in the proposed registration;
(B) second, the Primary Shares; and
(C) third, the Other Shares. .
(c) A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from those Investors who initiated the Investorrequest; PROVIDEDprovided, HOWEVERhowever, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of subclause (A) of clause (i) of subsection (b) above if the Company shall have been reimbursed (pro rata by the Investors requesting registration or in such other proportion as they may agree) for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and registration; provided further further, however, that no request such Investors shall not be required to register Registrable Securities may be reimburse the Company if such rescission shall have been caused by, or made pursuant to this Section 2(ain response to, the material adverse effect of an event on the business, prospects, properties, condition (financial or otherwise) for a period or operations of 180 days from the date of such recessionCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (Synnex Information Technologies Inc)
Demand Registration. (a) IfSubject to Article 2 hereof, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of if the Company other than pursuant to the Merger Agreement, and receives a written request by either or both Shareholders (iia "DEMANDING SHAREHOLDER") ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, that the Company shall be requested by the Investor to effect the a registration under the Securities Act of Registrable all or a portion of the Shareholder's Original Shares, then, upon and specifying the written request, delivered to the Company (which request shall specify the number intended method of Registrable Shares proposed to be included in such registration)disposition thereof, the Company shall, subject to Section 2(c) below, promptly will use its best efforts to effect such effect, as expeditiously as possible, the registration (a "DEMAND REGISTRATION") under the Securities Act of the Registrable such Original Shares. It is understood that one Demand Registration may cover Original Shares which the Company has been so requested to registerof both Demanding Shareholders.
(b) Anything contained in Notwithstanding Section 2(a3.01(a) and subject to the contrary notwithstandingArticle 2, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) more than three Demand Registrations and the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under effect a Demand Registration unless the Securities Act or any successor forms thereto) pursuant to which Primary Shares are aggregate proceeds expected to be or were sold has been filed and not withdrawn or has been declared effective within received from the prior 90 days;
(ii) 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 (A) the Company is engaged, or has bona fide plans to file within 60 days sale of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Original Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed requested to be included in such Demand Registration, in the reasonable opinion of a Financial Expert exercised in good faith, have a fair market value of at least $50 million (provided that in connection with a Demand Registration pursuant to which the Demanding Shareholder intends to sell all but not less than all of its remaining Original Shares, the expected aggregate proceeds of such registration would interfere with may be less than $50 million unless, in the successful marketing opinion of the Company, such lesser amount is not reasonable in light of the expected Registration Expenses or does not have a reasonable likelihood of being successfully sold). In no event will the Company be required to effect more than one Demand Registration within any six-month period.
(including pricingc) A registration requested pursuant to this Section 3.01 shall not be deemed to have been effected (and therefore not requested for purposes of all such securities, then the limitations in Section 3.01(b) on the number of Registrable Sharesthe registrations that can be made pursuant to Section 3.01(a)), Primary (i) unless a registration statement with respect thereto has become effective under the Securities Act and has remained effective for a period of at least 180 days (or such shorter period in which all Original Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) firststatement have actually been sold thereunder), the Registrable Shares held by the Investor requesting provided that its Registrable Shares be included in such a registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared which does not become effective by the Commission by written notice to after the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as has filed a registration statement initiated pursuant with respect thereto solely by reason of the refusal to this Section 2 for purposes proceed by the Demanding Shareholder (other than a refusal to proceed based upon the advice of clause (icounsel relating to a material adverse change in, or other material development relating to, the business properties, financial conditions or results of operations of the Company) above if the Company shall be deemed to have been reimbursed for all out-of-pocket expenses incurred effected by the Company in connection with such rescinded registration and provided further that no at the request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.Demanding Shareholder unless the
Appears in 1 contract
Sources: Shareholders Agreement (Florida East Coast Industries Inc)
Demand Registration. (a) IfAt 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, following upon written notice from such Holder in the earlier of (imanner set forth in Section 12(i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of hereof requesting that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Holder or any of its Affiliates, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such 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 Registrable Shares 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 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 has been so requested to register.
(b) Anything contained determines reasonably and in Section 2(a) to good faith would have a material adverse effect on the contrary notwithstandingCompany, the Company shall not be obligated 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) 30 days after the Company makes such determination, provided, however, that the Company shall not be permitted to delay a requested registration in reliance on this clause (i) more than twice in any registration under the Securities Act except in accordance with the following provisions:12-month period;
(iii) the Company shall not be obligated to use its best efforts file a registration statement relating to file and cause a registration request pursuant to become effective this Section 2: (A) prior to 180 days following the closing of the Public Offering, or (B) within a period of 60 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 two registration statements initiated pursuant 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(a2), 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) 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 the number of occasions on which such Permitted Transferee or its Affiliates may exercise their rights under this Section 2).
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (i) unless the registration statement during any period filed in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold connection therewith has been filed and not withdrawn or has been declared effective within the prior 90 days;
become effective, (ii) the Company may delay the filing or effectiveness of any if after such registration statement has become effective, it becomes subject to any stop order, or there is issued an injunction or other order or decree of the SEC or other governmental agency or court for any reason other than a period misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of up the Registrable Securities so registered prior to 90 days after the date 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 are not satisfied other than by reason of some act, misrepresentation or omission by a request for Holder and are not waived by the purchasers or underwriters.
(c) In the event that any registration pursuant to this Section 2(a) if 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the time Fair Market Value of the Registrable Securities to be registered in connection with such offering shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such request underwritten offering.
(Ad) The Company shall have the Company is engaged, or has bona fide plans right to file within 60 days cause the registration of additional securities for sale for the time account of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which any person (including the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (BCompany) in any 18-month period; and
(iii) with respect to registration of Registrable Securities requested by any registration Holder pursuant to Section 2(a); provided, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVERhowever, that if the managing underwriter advises or other independent marketing agent for such offering (if any) determines that, in its opinion, the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares additional securities proposed to be sold will materially and adversely affect the offering and sale of the Registrable Securities to be registered in accordance with the intended method or methods of disposition then contemplated by such Holder, only the number or principal amount of such additional securities, if any (in excess of the number or principal amount of Registrable Securities), which, in the opinion of such underwriter or agent, can be so sold without materially and adversely affecting such offering shall be included in such registration. The rights of a Holder to cause the registration would interfere with the successful marketing (including pricing) of all additional Registrable Securities held by such securities, then the number Holder in any registration of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held Securities requested by the Investor requesting that its Registrable Shares be included in such registration another Holder pursuant to Section 2(a) shall be governed by the agreement of the Holders with respect thereto as provided in Section 11(a);.
(Be) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the The Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as be obligated to file a registration statement initiated relating to a registration request by a Holder pursuant to this Section 2 for purposes from and after such time as such Holder (together with any Affiliates of clause (isuch Holder) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register first owns Registrable Securities may be made pursuant to representing (assuming for this Section 2(apurpose the conversion, exchange or exercise of all Registrable Securities then owned by such Holder that are convertible into or exercisable or exchangeable for Common Stock of the Company) for a period less than 10% of 180 days from the date then issued and outstanding Common Stock of such recessionthe Company.
Appears in 1 contract
Demand Registration. If on any occasion any Investor shall notify the ------------------- Company in writing that it or they intend to offer or cause to be offered for public sale at least 35% of the Registrable Shares (aor any lesser percentage if the aggregate market value of the shares to be registered, is greater than $10,000,000), the Company will so notify all Investors. Upon written request of any Investor given within fifteen (15) Ifdays after the receipt by such Investor from the Company of such notification, following the Company will use its best efforts to cause such of the Registrable Shares as may be requested by any Investor (including the Investor giving the initial notice of intent to offer) to be registered under the Securities Act as expeditiously as possible (a "Demand Registration"). The Company shall not be required to effect more than two Demand Registrations. If (i) in the good faith judgment of the Board of Directors of the Company, a Demand Registration would be materially detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to each Investor a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be 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 is materially detrimental, provided that the Company may not defer the filing for a period of more than 120 days after receipt of the request for a Demand Registration, or more than once in any 12-month period. If the Company determines to include shares to be sold by it in any registration requested pursuant to this Section 2.2, such registration shall be deemed to have been a "Piggy-Back" Registration under Section 2.1, and not a Demand Registration under this Section 2.2, if the Investors are unable to include in any such registration statement all of the Registrable Shares initially requested by them for inclusion in such registration statement. The Investors may not exercise their rights under this Section 2.2 until the earlier to occur of (i) twenty- four (24) months following the consummation date of a merger, consolidation, tender offer, sale of assets this Agreement or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after covering the date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionInitial Public Offering.
Appears in 1 contract
Demand Registration. (a) IfIf the Company shall receive at any time after June 1, following 2002 (so long as such request is not within 180 days after the earlier effective date of a registration statement filed by the Company covering an underwritten offering of any of its securities to the general public) a written request from one or more Principal Stockholders that the Company file a registration statement registering (x) Registrable Securities constituting at least twenty percent (20%) of the shares of Common Stock issuable upon conversion of the Series A Preferred Stock originally issued to the Principal Stockholders under the Purchase Agreement, or (y) any amount of Registrable Securities if the aggregate offering price for the registration, net of underwriting discounts and commissions, would exceed $5,000,000, then the Company will:
(i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition promptly give written notice of the Company proposed registration to all other than pursuant to the Merger Agreement, and Holders holding Registrable Securities; and
(ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeas soon as practicable, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration 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 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 Shares which Securities of any Holder or Holders joining in such request (as permitted hereunder) as are specified in a written request received by the Company has been so requested to register.
within twenty (b20) Anything contained in Section 2(a) to days after such written notice from the contrary notwithstandingCompany is mailed or delivered. Notwithstanding the foregoing provisions, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a)effect, or (B) to take any registration statement during action to effect, any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after the date of a request for such registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to this Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:if: ---------
(A) firstin any particular jurisdiction, the Registrable Shares held 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 Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(aSecurities Act);
(B) second, the Primary SharesCompany has initiated two registrations pursuant to Section 3.1
(a) (counting for these purposes only (1) registrations which have -------------- been declared or ordered effective and pursuant to which securities have been sold and (2) registrations which have 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); and-----------
(C) thirdsuch 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) Subject to the foregoing clauses (A) through (C), the Other Shares. A Company shall file a registration statement covering the Registrable Securities so requested registration under this Section 2 to be registered as soon as practicable after receipt of the request or requests of the Principal Stockholders (or their respective permitted Affiliate transferees), as the case may be rescinded prior to be; provided, however, that if (i) in the good -------- ------- faith judgment of the Board of Directors of the Company (the "Board of -------- Directors"), such registration being declared effective by the Commission by written notice would be seriously detrimental to the Company from --------- and the Investor; PROVIDEDBoard of Directors concludes, HOWEVERas a result, that it is essential to defer the filing of such rescinded registration shall not count as a registration statement initiated pursuant at such time, and (ii) the Company shall furnish to this Section 2 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 purposes such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of clause (i) above if such registration statement, then the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company right to defer such filing (except as provided in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(aclause (C) above) for a period of 180 not more than one hundred twenty (120) days from after receipt of the date request of such recessionthe initiating Principal Stockholder(s) (or their 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 initiating Principal Stockholder(s) (or their respective permitted Affiliate transferees) may, subject to the provisions of Sections 3.1(d) and 3.11 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.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of If the Company other than pursuant is requested by the Subscriber to effect a registration under the Merger AgreementAct, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, then the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect the registration of such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstandingSecurities; PROVIDED however, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(ia) the The Company shall not be obligated to use its best efforts to file and cause to become effective (Ai) more than two one registration statements statement initiated pursuant to this Section 2(a)3.4 which becomes effective or which is rescinded by the Subscriber without reimbursement, or (Bii) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares shares offered by the Company are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(iib) The Company shall not be obligated to effect any registration under this Section 3.4 if the Subscriber has been given the opportunity to register all of its Registrable Securities pursuant to Section 3 hereof;
(c) The Company may delay the filing or effectiveness of any registration statement for a period of up not to exceed 90 days after the date of a request for registration pursuant to this Section 2(a3.4 if (i) if at the time of such request (A) the Company is engaged, or has bona fide fixed plans to file engage within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares its own shares in which the holders of Restricted Shares may Subscriber may, to the extent such registration statement is in the registration process, include Registrable Shares pursuant to Section 3 3.5 or (ii) the Company shall furnish to the Subscriber certificate signed by the President or its General Counsel stating that, in the good faith judgment of the Board of Directors of the Company, that (A) it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed or (B) there exists a Material Transaction exists material development or a potential material development with respect to or involving the Company 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 judgment of the Company be premature or otherwise inadvisable at such time, provided and that the company may only so delay it is therefore essential to defer the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; andsuch registration statement.
(iiid) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 3.4 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from by the InvestorSubscriber; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) 3.4 above if the Company Subscriber shall have been reimbursed the Company for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration. The Company may select any firm of underwriters in connection with a registration and provided further that no request to register Registrable Securities may be made pursuant to under this Section 2(a) for a period of 180 days from the date of such recession3.4.
Appears in 1 contract
Demand Registration. (a) IfAt 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, following upon written notice from such Holder in the earlier of (imanner set forth in Section 13(h) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of hereof requesting that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Holder, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including in an offering on a delayed or continuous basis under Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act, if (x) the Company is then eligible to register such Registrable Shares which 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 been so requested in good faith commenced the preparation of a registration statement for an underwritten public offering prior to register.
(b) Anything contained in 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 contrary notwithstandingtime and on the terms requested would materially and adversely affect the offering that is contemplated by the Company, the Company shall not be obligated 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 once in any registration under the Securities Act except in accordance with the following provisions:12-month period;
(iii) 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 use its best efforts file a registration statement relating to file and cause a registration request pursuant to become effective this Section 2: (A) more than two 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 statements initiated 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; 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 BCC 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) Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (A) unless the registration statement during any period filed in which any other connection therewith has become effective, (B) if after such registration statement (has become effective, it becomes subject to any stop order, or there is issued an injunction or other order or decree of the SEC or other governmental agency or court for any reason other than on Form S-4 a misrepresentation or Form S-8 promulgated under 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 Act so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement, or any successor forms thereto(C) pursuant if the conditions to which Primary Shares closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are to be not satisfied by reason of some act, misrepresentation, or were sold has been filed omission by the Company and are not withdrawn waived by the purchasers or has been declared effective within the prior 90 days;underwriters; and
(ii) nothing herein shall modify a Holder's obligation to pay Registration Expenses, in accordance with Section 4 hereof, that are incurred in connection with any withdrawn registration requested by such Holder.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Fair Market Value of the Registrable Securities to be registered in connection with such offering shall have the right to designate an underwriter reasonably satisfactory to the Company may delay as the filing or effectiveness lead managing underwriter of such underwritten offering, and the Company shall have the right to designate one underwriter reasonably satisfactory to such Holders as a co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration statement for a period of up to 90 days after the date of a request for registration Registrable Securities requested by any Holder pursuant to Section 2(a) only to the extent the managing underwriter or other independent marketing agent for such offering (if at any) determines that, in its opinion, the time of such request (A) additional securities proposed to be sold will not materially and adversely affect the Company is engaged, or has bona fide plans to file within 60 days offering and sale of the time Registrable Securities to be registered in accordance with the intended method or methods of disposition then contemplated by such request, a registration statement in respect Holder. The rights of a firm commitment underwritten public offering Holder to cause the registration of Primary Shares in which the holders of Restricted Shares may include additional Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at Securities held by such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) Holder in any 18-month period; and
(iii) with respect to any registration of Registrable Securities requested by another Holder pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included governed by the agreement of the Holders with respect thereto as provided in the following order:Section 11(a).
(Ae) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the The Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as be obligated to file a registration statement initiated relating to a registration request by a Holder pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with from and after such rescinded registration and provided further that no request to register time as such Holder first owns Registrable Securities may be made pursuant to representing (assuming for this Section 2(apurpose the conversion, exchange, or exercise of all Registrable Securities then owned by such Holder that are convertible into or exercisable or exchangeable for Voting Stock of the Company) for a period less than 10% of 180 days from the date then issued and outstanding Voting Stock of such recessionthe Company.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested by holders of at least 20% of the Investor total number of outstanding Restricted Shares (assuming conversion of all shares of Convertible Preferred Stock) to effect the a registration under the Securities Act of Registrable all or a portion of Restricted Shares with an aggregate Fair Market Value as of the date of such request equal to at least $25,000,000, or, if the Restricted Shares have an aggregate Fair Market Value of less than $25,000,000, all of the remaining Restricted Shares, thenin accordance with this Section, upon then the Company shall promptly give written request, delivered notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Restricted Shares requested to be included in such proposed registration by such holders who respond in writing to the Company Company's notice within 15 days after delivery of such notice (which request response shall specify the number of Registrable Restricted Shares proposed to be included in such registration and the intended method of distribution, which may be pursuant to a shelf registration). If a registration pursuant to Section 7 hereof is available, the holders of Restricted Shares shall utilize such registration instead of making a request pursuant to this Section 5, unless the holders of Restricted Shares reasonably determine that it is advantageous to such holders of Restricted Shares to make a request under this Section 5. The Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such registration on an appropriate form under the Securities Act of the Registrable Restricted Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; provided, however, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts file more than four registration statements in total pursuant to this Section, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to 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;
days or (iiB) the Company may delay has determined in good faith that the filing or effectiveness of any a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for a period of up preserving as confidential, such filing to be delayed until the date which is 90 days after the date of a such request for registration pursuant to this Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, 5(a); provided that the company Company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once registration statement pursuant to this clause (BSection 5(a)(ii)(B) in on one occasion during any 18twelve-month period; and
(iii) with respect to any the registration pursuant to Section 2(a)this Section, the Company may include in such registration any Primary Shares or Other Shares; PROVIDEDprovided, HOWEVERhowever, that if the managing underwriter advises the Company in writing that the inclusion of all Registrable Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) firstFirst, the Registrable Restricted Shares, pro rata based upon the number of Restricted Shares held owned by each holder at the Investor requesting that its Registrable Shares be included in time of such registration pursuant to Section 2(a)registration;
(B) secondSecond, the Primary Shares; and
(C) thirdThird, the Other Shares.
(b) The holders of Restricted Shares requesting a registration pursuant to this Section may, in the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such holders shall select one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the Company. The Company shall, together with all holders proposing to sell Restricted Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from by the Investor; PROVIDEDPersons holding a majority of the Restricted Shares to be included in such registration with the following consequences:
(i) If such registration statement is rescinded prior to the filing date, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause paragraph (ia) above;
(ii) If such registration statement is rescinded after the filing date but prior to its effective date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above if the participating holders (x) have reimbursed the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company of such fact and provided further requested that no request the Company correct such alleged misstatement or omission and (3) the Company has refused to register Registrable Securities may be made correct such alleged misstatement or omission; and
(iii) A registration that becomes effective shall not count as a registration statement initiated pursuant to this Section 2(afor purposes of paragraph (a) for a period above unless the participating holders are able to sell at least 80% of 180 days from the date of Restricted Shares sought to be included in such recessionregistration statement.
Appears in 1 contract
Sources: Investors' Rights Agreement (Encompass Services Corp)
Demand Registration. (a) IfOn or prior to each Filing Date, following the earlier Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such ▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Demand Registration Statement filed under this Agreement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its 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) the consummation of a mergerhave been sold, consolidation, tender offer, sale of assets thereunder or other disposition of the Company other than pursuant to the Merger AgreementRule 144, and or (ii) ninety 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 (90the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) days on a Trading Day. The Company shall immediately notify the Holders via e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after the termination effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless Registrable Securities cannot, as a result of the reasons thereforeapplication 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 commercially reasonable efforts to file amendments to the Demand 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); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages with respect only to the Registrable Securities that the Commission has not objected to under Rule 415; provided, however, that prior to filing such amendment, the Company shall be requested by obligated to use diligent efforts to advocate with the Investor to effect Commission for the registration under of all of the Registrable Securities Act in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of Registrable Shares, then, upon the written request, delivered this Agreement and subject to the Company (which request shall specify 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 Shares proposed Securities permitted to be included in such registrationregistered on a particular Demand Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the Company shall, subject number of Registrable Securities to Section 2(c) below, promptly use its best efforts to effect be registered on such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.Registration Statement will be reduced as follows:
(b) Anything contained in Section 2(a) to the contrary notwithstandinga. First, the Company shall not reduce or eliminate any securities to be obligated included other than Registrable Securities;
b. Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to effect pursuant the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders); and
c. Third, the Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to Section 2(athe Holders on a pro rata basis based on the total number of unregistered Shares held by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least three (3) any registration under Trading Days prior written notice along with the Securities Act except calculations as to such ▇▇▇▇▇▇’s allotment. In the event the Company amends the Demand Registration Statement in accordance with the following provisions:
(i) foregoing, the Company shall not be obligated to will use its best efforts to file and cause with the Commission, as promptly as allowed by Commission or SEC Guidance provided to become effective (A) the Company or to registrants of securities in general, one or more than two registration statements initiated pursuant on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Demand Registration Statement, as amended.
(d) If: (i) the Demand Registration Statement is not filed on or prior to its Filing Date (if the Company files the Demand Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 2(a4(a) herein or the Company subsequent withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this clause as of the Filing Date (i)), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay fails to file with the filing Commission a request for acceleration of a Demand Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the date that the Company is notified (orally or effectiveness in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of any registration statement for a period Demand Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of up to 90 such Registration Statement within ten (10) calendar days after the date receipt of comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be declared effective, or (iv) a request Demand Registration Statement registering for registration resale all of the Registrable Securities (or the maximum number of Registrable Securities allowed by the Commission pursuant to Section 2(a2(b)) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being not declared effective by the Commission by written notice the Effectiveness Date of the Demand Registration Statement or (v) after the effective date of a Demand 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 Company from Holders are otherwise not permitted to utilize the Investor; PROVIDEDProspectus therein to resell such Registrable Securities, HOWEVERfor more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) 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”, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 and for purposes of clause clauses (i) above and (iv), 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 (iii) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall have been reimbursed for all out-of-pocket expenses incurred 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, up to a maximum of 10.0%. 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.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company in connection with such rescinded registration shall (i) register the resale of the Registrable Securities on another appropriate form and provided further that no request (ii) undertake to register the Registrable Securities may on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be made pursuant permitted to this Section 2(a) for name any Holder or affiliate of a period of 180 days from Holder as any underwriter without the date prior written consent of such recessionHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Cyclo Therapeutics, Inc.)
Demand Registration. (a) If, following At any time after the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition closing date of the Company other than pursuant to Public Offering, upon written notice from a Holder in the Merger Agreement, and (iimanner set forth in Section 12(h) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, hereof requesting that the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Holder, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such 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 Registrable Shares which intended method or methods of disposition stated in such request, provided that:
(i) if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), the Company has is advised in writing (with a copy to the Holder requesting registration) by the managing underwriter of the proposed offering described below that, in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by the Company that had been so requested contemplated by the Company prior to register.
(b) Anything contained in receipt of notice requesting registration pursuant to this Section 2(a) to the contrary notwithstanding(a "Transaction Blackout"), the Company shall not be obligated required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment 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 under of the Securities Act except managing underwriter's written opinion referred to above in accordance with the following provisions:this subsection (i));
(iii) if, while a registration request is pending pursuant to this Section 2(a), the Company has determined 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 shall not be obligated required to use its best efforts to file and cause to become effective (A) more than two effect a registration statements initiated 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 (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are ceases to be material or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company is able to so comply with applicable SEC requirements, as the case may delay the filing or effectiveness of any registration statement for a period of up to 90 be, and (2) 45 days after the date of a request for registration pursuant to Section 2(a) if at the time of Company makes such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such timegood-faith determination, provided that the company may only so Company shall not be permitted to delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to requested registration in reliance on this clause (Bii) more than once in any 1824-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) within a period of 12 months after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a); (B) if such registration request is for a number of Registrable Securities less than 10% of the common equity of the Company then owned in the aggregated by the Holders; or (C) if Holders in the aggregate own less than 10% of the common equity of the Company.
(b) Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to this Section 2, shall not be deemed to have been effected (and, therefore, not requested for purposes of subsection 2(a), (A) unless the registration statement filed in connection therewith has become effective, (B) if after it has become effective such registration is interfered with respect by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, not less than 90% of the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement 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 some act or omission by such Holder) or waived by the underwriters;
(ii) a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2(a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, except that if such request is withdrawn by a Holder prior to the filing of a registration statement with the SEC, such Holder can require the Company to disregard for purposes of Section 2(a)(iii) one such requested registration in any twelve month period; and
(iii) nothing herein shall modify Holder's obligation to pay the Registration Expenses incurred in connection with any withdrawn registration.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, a Holder shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering and the Company shall have the right to designate one underwriter reasonably satisfactory to the Holder as a co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a), ; provided that the Company may include shall not have the right to cause the registration of such additional securities if such Holder is advised in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if writing (with a copy to the Company) by the managing underwriter advises the Company that the inclusion of all Registrable Sharesthat, Primary Shares and Other Shares proposed to be included in such firm's good faith opinion, registration of such additional securities would interfere with materially and adversely affect the successful marketing (including pricing) offering and sale of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held Securities then contemplated by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (American States Financial Corp)
Demand Registration. (a) If, following the earlier of At any time (i) following the consummation of a merger, consolidation, tender offer, sale of assets or other disposition fourth anniversary of the Company other than final closing of the offering of securities pursuant to the Merger AgreementPlacement Memorandum and before the filing date of the Company's initial public offering of its Common Stock ("IPO"), and if the Company receives a written request from the holders of at least sixty percent (60%) of the Registrable Securities outstanding, that the Company 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 termination Company of a request pursuant to the Merger Agreement preceding clause (i) or sixty (60) days after receipt by the failure Company of a request pursuant to consummate the transactions contemplated thereby regardless preceding clause (ii)), and subject to the limitations of the reasons thereforeSubsection 2(b) hereof, the Company shall be requested by the Investor file a registration statement in accordance with Section 5 hereof, with respect to effect the registration under the Securities Act of all Registrable SharesSecurities which the Holders may specify in such request in writing within twenty (20) days after receipt of such notice from the Company.
(b) 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, thenthey shall 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 written requestinclusion 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, delivered 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 Company.
(which request 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 specify so advise all holders of Registrable Securities, and the number of Registrable Shares proposed Securities to be included 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. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act . If any holder of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed securities to be included in such registration would interfere with disapproves of the successful marketing (including pricing) terms of all the underwriting, such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed person may elect to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission 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 from may include its securities for its own account in such registration with the Investor; PROVIDEDprior agreement of the underwriter, HOWEVER, that provided the number of Registrable Securities and other securities which would otherwise have been included in such rescinded registration shall and underwriting will not count as a registration statement initiated 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 2 for purposes of clause 2.
(if) above Notwithstanding the foregoing, if the Company shall have been reimbursed for all out-of-pocket expenses incurred furnish to the Initiating Holders a certificate signed by the President of the Company stating that in connection with the good faith judgment of the Board of Directors of the Company, it would be detrimental to the Company and its shareholders for such rescinded registration and provided further that no request statement to register Registrable Securities may be made pursuant filed, the Company shall have the right to this Section 2(a) defer such filing for a period of 180 not more than one hundred twenty (120) days after receipt of the request from the date of such recessionInitiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Demand Registration. (a) IfAt 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, following upon written notice from such Holder in the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of manner set forth herein requesting that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Holder, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such effect, in the manner set forth in Section 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including in an offering on a delayed or continuous basis under Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act, if (x) the Company is then eligible to register such Registrable Shares which 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 been so requested in good faith commenced the preparation of a registration statement for an underwritten public offering prior to register.
(b) Anything contained in receipt of the notice requesting registration pursuant to this Section 2(a) to and the contrary notwithstandingmanaging 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 obligated required to effect a registration pursuant to this Section 2(a) any (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 under of the Securities Act except managing underwriter's written opinion referred to above in accordance with the following provisions:
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 obligated permitted to use its best efforts to file and cause to become effective delay a requested registration in reliance on this clause (Ai) more than two registration statements initiated pursuant to Section 2(a), or (B) once in any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days12-month period;
(ii) 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 (A) the Company is engagedif, or has bona fide plans to file within 60 days of the time of such request, while a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once request is pending pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDEDdetermines, HOWEVERfollowing consultation with and receiving advice from its legal counsel, that if the managing underwriter advises the Company that the inclusion filing of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.registration
Appears in 1 contract
Demand Registration. (a) If, following Upon the earlier written request of (i) the consummation of a merger, consolidation, tender offer, sale of assets ZS or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination DLJMB on behalf of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeDLJMB Entities (a "Selling Shareholder"), requesting that the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of any or all such Selling Shareholder's Registrable Shares proposed to be included in such registration)and specifying the intended method of disposition thereof, the Company shallwill promptly give written notice of such requested registration (a "Demand Registration") at least 20 days prior to the anticipated filing date of the registration statement relating to such Demand Registration to all other Shareholders, subject to Section 2(c) below, promptly and thereupon will use its best efforts to effect such effect, as expeditiously as possible, the registration under the Securities Act of of:
(i) the Registrable Shares which that the Company has been so requested to register.register by the Selling Shareholder, then held by the Selling Shareholder, but, in the case of the Management Shareholders, subject to the provisions of Article 3 hereof; and
(bii) Anything contained all other Registrable Shares that any other Shareholder or their Permitted Transferees (all such Shareholders, together with the Selling Shareholder, the "Holders") has requested the Company to register, subject to Article 3 hereof (in the case of the Management Shareholders only) and Section 2(a5.2 hereof, by written request received by the Company within ten (10) days after the receipt by such Holders of such written notice given by the Company, all to the contrary notwithstanding, extent necessary to permit the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except disposition (in accordance with the following provisions:
intended methods thereof as aforesaid) of the Registrable Shares so to be registered; PROVIDED, HOWEVER, that (i) the Company shall not be obligated to use its best efforts effect more than one Demand Registration in any four-month period, (ii) the Company shall not be obligated to file and cause to become effective effect (A) more than two registration statements initiated pursuant to Section 2(a), five Demand Registrations for the DLJMB Entities (taken as a group) or (B) any registration statement during any period in which any other registration statement (other more than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) one Demand Registration for ZS pursuant to which Primary this Section 5.1, (iii) ZS will not be permitted to exercise a Demand Registration until after the consummation of the IPO, (iv) the Company shall not be obligated to effect a Demand Registration unless, in the reasonable judgment of DLJMB exercised in good faith, the aggregate Registrable Shares are requested to be or were sold has been filed included in such Demand Registration by the Holders would have a fair market value of at least $20,000,000, or, in the case of ZS's Demand Registration, in the reasonable judgment of the Board exercised in good faith, the aggregate Registrable Shares requested to be included in such Demand Registration would have a fair market value of at least $5,000,000 and represent not withdrawn or has been declared effective within the prior 90 days;
less than 50% of ZS's Initial Ownership, (iiv) 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement pursuant to a Demand Registration for a reasonable period (not to exceed 90 days), if, in respect the good faith judgment of the Company, the Company would be required to include in such registration statement material business information which at that time cannot be publicly disclosed without material disruption of a firm commitment underwritten public offering significant corporate development or transaction then pending or in progress and without material adverse consequences, and (vi) if the effective date of Primary Shares in which the holders registration statement would otherwise be 45 calendar days after, but prior to 90 calendar days after, the end of Restricted Shares may the Company's fiscal year, and the Securities Act requires the Company to include Registrable Shares audited financials (as of the end of such fiscal year) or the Securities Act permits the use of, and DLJMB or ZS, pursuant to Section 3 or (B) a Material Transaction exists at such timetheir demand request, provided has requested that the company may only so delay registration statement include audited financials (as of the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(aend for such fiscal year), the Company may delay the filing of a registration statement for such period as is reasonably necessary (not to exceed a date 90 calendar days after the end of the Company's fiscal year) to include therein its audited financial statements for such fiscal year. Promptly after the expiration of the ten-day period referred to in Section 5.1(a)(ii) hereof, the Company will notify all the Holders to be included in the Demand Registration of the other Holders and the number of shares of Registrable Shares requested to be included therein in accordance with Section 5.2. The Selling Shareholder requesting a registration under this Section 5.1(a) may, at any time prior to the effective date of the registration statement relating to such registration Demand Registration, revoke such request, without liability to any Primary Shares or Other Sharesof the other Holders, by providing a written notice to the Company and such other Holders irrevocably revoking such request, in which case such request, so revoked, shall not be considered a Demand Registration if any Registration Expenses incurred by the Company as a result of such revoked request are paid by such Selling Shareholder; PROVIDED, HOWEVER, that any other Shareholder entitled to request a Demand Registration under this Section 5.1(a) may request the Company to continue such registration by providing written notice within five days of receipt of the notice revoking the original request, in which case such 35 registration shall constitute a Demand Registration of such other Shareholder.
(b) The Company will pay all Registration Expenses in connection with any Demand Registration, except as otherwise provided in the last paragraph of Section 5.1(a) hereof.
(c) A Demand Registration requested pursuant to Section 5.1(a) shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Shares of the Holders included in such Demand Registration has actually been sold thereunder); PROVIDED, HOWEVER, that, if after any registration statement requested pursuant to this Section 5.1 becomes effective, such registration statement is interfered with by any stop order, cease trade order, injunction or other order or requirement of the SEC, or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration statement shall be at the sole expense of the Company and shall not be considered a Demand Registration.
(d) If a Demand Registration involves a Public Offering and the managing underwriter advises thereof shall advise the Company and the Selling Shareholder that, in its view, (i) the number of Common Shares or other shares of common stock of the Company requested to be included in such registration (including Common Shares or other shares of common stock of the Company which the Company proposes to be included that are not Registrable Shares) or (ii) the inclusion of some or all of the Registrable Shares owned by the Holders, in either case, exceeds the largest number of Shares (including any other shares of common stock of the Company) that can be sold without having an adverse effect on such Public Offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in accordance with the priority listed below, up to and not in excess of the Maximum Offering Size:
(A) if such Demand Registration is being effected pursuant to DLJMB's initial Demand Registration request, FIRST, all Registrable SharesShares requested to be included in such Demand Registration by the DLJMB Entities; SECOND, Primary subject, in the case of the Management Shareholders, to Article 3 hereof, including, without limitation, the Public Offering Limitations, all Registrable Shares requested to be included in such Demand Registration by ZS and Other the Management Shareholders pro rata on the basis of the relative number of Registrable Shares offered for sale under such registration by ZS and each of the Management Shareholders; and THIRD, any Common Shares (or other shares of common stock of the Company) proposed to be included in such registration would interfere with Demand Registration by the successful marketing Company;
(including pricingB) if such Demand Registration is being effected pursuant to any of DLJMB's Demand Registration requests other than its initial Demand Registration request, FIRST, all Registrable Shares requested to be included in such securities, then Demand Registration by the DLJMB Entities and ZS pro rata on the basis of the relative number of Registrable SharesShares offered for sale under such registration by each of the DLJMB Entities and ZS; SECOND, Primary subject to Article 3, including, without limitation, the Public Offering Limitations, all Registrable Shares requested to be included in such Demand Registration by the Management Shareholders pro rata on the basis of the relative number of Registrable Shares offered for sale under such registration by each of the Management Shareholders; and Other THIRD, any Common Shares (or other shares of common stock of the Company) proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held Demand Registration by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary SharesCompany; and
(C) thirdif such Demand Registration is being effected pursuant to ZS's Demand Registration request, FIRST, all Registrable Shares requested to be included in such Demand Registration by ZS; SECOND, all Registrable Securities to be included in such Demand Registration by the DLJMB Entities and, subject to Article 3, including, without limitation, the Other SharesPublic Offering Limitations, the Management Shareholders pro rata on the basis of the relative number of Registrable Shares offered for sale under such registration by each of the DLJMB Entities and each of the Management Shareholders; and THIRD, any Common Shares (or other shares of common stock of the Company) proposed to be included in such Demand Registration by the Company. A requested registration under If as a result of the proration provisions of this Section 2 5.1{d), any Holder of Registrable Shares is not entitled to include all such Registrable Shares in such Demand Registration, such Holder may be rescinded prior elect to withdraw his, her or its request to include any Registrable Shares in such registration being declared effective by the Commission by written notice to the Company from the InvestorDemand Registration (a "Withdrawal Election"); PROVIDED, HOWEVER, that a Withdrawal Election shall be irrevocable and any Holder of Registrable Shares who has made a Withdrawal Election shall no longer have any right to include any Registrable Shares in such rescinded registration Demand Registration as to which such Withdrawal Election was made. The number of securities required to satisfy any underwriters' over-allotment option shall not count as a registration statement initiated pursuant to this Section 2 for purposes be allocated pro rata among all Holders of clause (i) above if Registrable Shares and the Company shall have been reimbursed for all outon the basis of the relative number of securities otherwise to be included by each of them in the registration with respect to which such over-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionallotment option relates.
Appears in 1 contract
Sources: Shareholders' Agreement (Von Hoffmann Holdings Inc)
Demand Registration. (a) IfSubject to the qualifications set forth in this Section 6(b), following a Majority of the Holders shall have the right, at any time and from time to time, but not earlier of (i) than the consummation of a mergerCommencement Date or later than the Expiration Date, consolidation, tender offer, sale of assets or other disposition to make 5 written request of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration register under the Securities Act of Registrable Shares, then, upon and the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act Regulations all or any portion of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days Securities. Promptly after the date receipt of a request for registration pursuant to this Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a6(b), the Company may shall notify all other Holders of such request and shall include in the registration effected hereunder such Registrable Securities as any other Holder shall request within 15 days after such notice. As soon as reasonably practicable after receipt of the original request, the Company shall file with the SEC a registration statement for the registration of the Subject Stock for sale to the public and use its reasonable best efforts to cause such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the statement to become effective. The Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed is obligated to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in effect only one such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior 6(b). Notwithstanding the foregoing, if the Company shall furnish to such registration being declared effective each of the Holders a certificate signed by the Commission by written notice Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company it would be significantly disadvantageous to the Company from the Investor; PROVIDED, HOWEVER, that and its shareholders for such rescinded registration shall not count as a registration statement initiated to be filed (other than as a result of the time and expense involved in the registration process), the Company shall have the right to defer such filing for a period of not more than 90 days after receipt of the request to effect such a registration; provided, however, that the Company may not utilize this right more than once; and provided, further, that the Holder who made such written request to effect such registration, may, at any time in writing during the period of the deferral, withdraw the request for such registration and thereby preserve the right provided in this Section 6(b) to request such registration on a subsequent occasion. At any time prior to the effectiveness of a registration statement filed pursuant to this Section 2 for purposes 6(b), the Holders of clause (i) above if a majority of the Subject Shares covered thereby may instruct the Company to withdraw the registration statement. If following any such withdrawal, the Holders shall have been reimbursed reimburse the Company for all out-of-pocket expenses incurred by the Company it in connection with such rescinded the registration, including expenses incurred in withdrawing the registration and provided further that no request statement, the Holders shall have the right to register Registrable Securities may be made require the Company to file a registration statement under this Section 6(b) on a subsequent occasion. In connection with any offering of Subject Stock registered pursuant to this Section 2(a) 6(b), the Company agrees not to effect any public sale or distribution of Common Stock for a the seven-day period of 180 days from preceding, and the 90-day period beginning on, the effective date of such recessionregistration.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of The Subscriber may at any time request the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration register under the Securities Act all or portion of Registrable Shares, then, upon the written request, delivered Shares held by it for sale in the manner and pursuant to the Company (which request shall specify the number of Registrable Shares proposed to be included Form specified in such registration)notice; provided, the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisionsthat:
(i) the Company shall not be obligated reasonably anticipated aggregate net proceeds to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 dayssellers from such public offering would exceed $5,000,000;
(ii) such request covers at least 25% of the voting securities of the Company then outstanding; and
(iii) no such request may delay be made by the filing or effectiveness of any registration statement for a period of up Subscriber more than once every nine months. Notwithstanding anything to the contrary contained herein, no request may be made under this clause 9(2) within 90 days after the effective date of a request for registration pursuant to Section 2(a) if at the time of such request (A) statement filed by the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of covering a firm commitment underwritten public offering of Primary Shares in which the Subscriber shall have been entitled to join pursuant to clause 9(1) or 9.3 and in which there shall have been effectively registered all of the Shares as to which registration shall have been requested.
(b) Following receipt of any notice under this clause 9.2, the Company shall immediately notify the Subscriber 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 specified in such notice (and in all notices received by the Company from other holders within 20 days after the giving of Restricted Shares such notice by the Company). If such method of disposition shall be an underwritten public offering, the Subscriber may include Registrable designate the managing underwriter of such offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed. The Company shall be obliged to register Shares pursuant to Section 3 clause 9.2(a) on three occasions only, provided, however, that such obligations shall be deemed satisfied only when a registration statement covering all of the Shares specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto unless:
(i) any such registration statement does not become effective due to the withdrawal thereof by or on the request of the Subscriber; or
(Bii) a Material Transaction exists at such time, provided that the company may only so delay reason all of the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once Shares specified in notices pursuant to this clause 9.2 are not registered is due to a limitation on the registration of shares by the managing underwriter (Bwhich limitation shall be applied pro rata) and no more than 50 per cent. of the Shares so specified are not registered as a result of the limitation imposed by such managing underwriter or the voluntary withdrawal of any such shares from registration by the holder thereof.
(c) the Company shall be entitled to include in any 18registration statement referred to in this clause 9.2, for sale in accordance with the method of disposition specified by the requesting holders, shares of its 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 Shares to be sold. Except for registration statements on Forms S-4, ▇-month period; and
(iii) ▇ ▇▇ any successor thereto, the Company will not file with the Commission any other registration statement with respect to any registration pursuant to Section 2(a)its common stock, the Company may include in such registration any Primary Shares whether for its own account or Other Shares; PROVIDEDthat of other stockholders, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionreceipt of a notice from requesting holders pursuant to this clause 9(2) 90 days after the commencement of the public offering of the Shares covered by the registration statement requested pursuant to this clause 9(2).
Appears in 1 contract
Demand Registration. (a) If, following At any time prior to the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition seventh anniversary of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination closing date of the Merger Agreement or Public Offering, upon written notice from a Holder in the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, manner set forth in section 12(h) hereof requesting that the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such holder, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such 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 Registrable Shares which intended method or methods of disposition stated in such request, PROVIDED that:
(i) if, within 5 business days of receipt of a registration request pursuant to this Section 2 (a), the Company has is advised in writing (with a copy to the Holder requesting registration) by the managing underwriter of the proposed offering described below that, in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by the Company that had been so requested contemplated by the Company prior to register.
(b) Anything contained in receipt of notice requesting registration pursuant to this Section 2(a) to the contrary notwithstanding(a "Transaction Blackout"), the Company shall not be obligated 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 completion of such offering, (C) the termination of any "hold back" period obtained by the underwriter(s) of such offering from any person in connection therewith or (D) 180 days after receipt by the Holder requesting registration under of the Securities Act except managing underwriter's written opinion referred to above in accordance with the following provisions:this subsection (i));
(iii) if, while a registration request is pending pursuant to this Section 2(a), the Company has determined 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 shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or the Company is able to so comply with applicable SEC requirements, as the case may be, and (2) 45 days after the Company makes such good-faith determination, PROVIDED that the Company shall not be permitted to delay a requested registration in reliance on this clause (ii) more than once in any 24 month period; and
(iii) the Company shall not be obligated to use its best efforts file a registration statement relating to file and cause a registration request pursuant to become effective this Section 2: (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any within a period in which of 6 months after the effective date of any other registration statement of the Company demanded pursuant to this Section 2(a); (B) if such registration request is for a number of Registrable Securities less than 7.5% of the issued and outstanding common equity of the Company (unless the Holders making the demand own 5% or more of the issued and outstanding common equity of the Company in the aggregate and the demand is for all their outstanding Registrable Securities) or (C) if Holders in the aggregate own less than 5% of the issued and outstanding common equity of the Company.
(b) Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of subsection 2(a)) (A) unless the registration statement filed in connection therewith has become effective, (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 court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, 90% or more of the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (other than on Form S-4 by reason of some acts or Form S-8 promulgated under omission by such Holder) or waived by the 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 daysunderwriters;
(ii) a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the Company may delay request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2 (a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, except that if such request is withdrawn by a Holder prior to 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect with the SEC, such Holder can require the Company to disregard for purposes of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or 2 (Ba) a Material Transaction exists at (iii) one such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) requested registration in any 18-six month period; and
(iii) nothing herein shall modify Holder's obligation to pay the Registration Expenses incurred in connection with respect to any withdrawn registration.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, a Holder shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering and the Company shall have the right to designate one underwriter reasonably satisfactory to the Holder as a co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a), ; PROVIDED that the Company may include shall not have the right to cause the registration of such additional securities if such Holder is advised in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if writing (with a copy to the Company) by the managing underwriter advises the Company that the inclusion of all Registrable Sharesthat, Primary Shares and Other Shares proposed to be included in such firm's good faith opinion, registration of such additional securities would interfere with materially and adversely affect the successful marketing (including pricing) offering and sale of all the Registrable Securities then contemplated by such securitiesHolder, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration except that Code shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant required to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice include shares of ▇▇▇▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇ to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count extent required by their Executive Securities Agreements as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from effect on the date of such recessionhereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Beacon Roofing Supply Inc)
Demand Registration. (ai) If, following At any time commencing on the earlier of (iA) six months following the effective date of an Initial Public Offering and (B) the consummation third anniversary of the date hereof, and expiring five years thereafter and provided, that such Securities shall not at that time be eligible for sale pursuant to Rule 144(k) under the Act, the holders of OCM Securities and Northstar Securities 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 mergermajority (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"), consolidationto have Holdings prepare and file with the Securities and Exchange Commission (the "Commission") a registration statement ("Demand Registration Statement") and such other documents, tender offerincluding 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 assets or other disposition of the Company other than pursuant to Demand Securities by the Merger Agreement, and holders thereof for nine consecutive months.
(ii) ninety A registration requested pursuant to this Section 4.2 shall not be deemed to have been effected (90and thereby the right to make a demand not used) days (A) unless a Registration Statement with respect thereto has become effective, provided that a registration which does not become effective after the termination Holdings has filed a Registration Statement with respect thereto solely by reason of the Merger Agreement or the failure refusal to consummate the transactions contemplated thereby regardless proceed of the reasons therefore, holders (other than a refusal to proceed based upon the Company advice of counsel relating to a matter with respect to Holdings) shall be requested deemed to have been effected by Holdings at the Investor request of such holders unless the holders of Demand Securities shall have elected to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered pay all expenses referred to the Company (which request shall specify the number of Registrable Shares proposed to be included in Section 4.3(b) in connection with such registration), the Company shall(B) if, after it has become effective, such registration becomes subject to Section 2(cany stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason and such order, injunction or requirement is not promptly withdrawn or lifted, or (C) below, promptly use its best efforts the conditions to effect closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration under the Securities Act are not satisfied, other than by reason of the Registrable Shares which the Company has been so requested to registersome act or omission by such holders.
(b) Anything contained Holdings shall have the right, at its option, following receipt of the demand referred to in Section 2(a4.2(a) above, in lieu of filing a registration statement referred to in such demand, to undertake the contrary notwithstandingfiling of a registration statement under the Act with the Commission for the sale by Holdings of securities of Holdings, in which case, the Company 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 obligated deemed to effect pursuant have been exercised, and such parties shall retain such right subject to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:limitations contained therein.
(ic) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a)In Holdings' discretion, it may include a sale of shares or (B) any registration statement during any period shares owned by others or an issuance of shares by Holdings in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes 4.2. In the event of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company an Underwriter's Cutback in connection with such rescinded a registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.this
Appears in 1 contract
Demand Registration. (a) If, following the earlier The holders of (i) the consummation of Registrable Securities constituting at least a merger, consolidation, tender offer, sale of assets or other disposition majority of the Company other than pursuant to total Registrable Securities then outstanding may, by written notice (the Merger Agreement“Demand Notice”), and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, demand that the Company shall be requested by the Investor to effect the a registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act all or any portion of the Registrable Shares which the Company has been so requested to registerSecurities held by such requesting holders.
(b) Anything contained in Section 2(a) to Notwithstanding the contrary notwithstandingforegoing, the Company shall not be obligated to effect a registration pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisionsabove:
(i) Prior to one hundred eighty (180) days after the effective date of the Company’s initial registered offering of securities to the public;
(ii) During the period commencing on the date sixty (60) days prior to the Company’s estimated date of filing of, and ending on the date one hundred eighty (180) days immediately following the 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 shall not is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) After the Company has effected two (2) registrations pursuant to Section 2(a) above, and each such registration has been declared or ordered effective or has been withdrawn by the initiating holders;
(iv) If the initiating holders propose to dispose of Registrable Securities which may be obligated immediately registered on Form S-3 pursuant to a request made under Section 3B of this Agreement; or
(v) If the Company furnishes to such initiating 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 or its stockholders for a registration statement to be filed in the near future; provided, that the Company’s obligation to use its best efforts to file register, qualify or comply under Section 2(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 cause to become effective (A) such deferral right shall not be exercised by the Company more than two registration statements initiated pursuant 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, 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 the Company shall immediately notify all holders of Registrable Securities from whom a Demand Notice has not been received and shall use its best efforts to register under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed Act, for public sale the number of shares of Common Stock specified in the Demand Notice (and not withdrawn or has been declared effective within the prior 90 days;
(ii) in all notices received by the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 from other holders within thirty (30) days after the date giving of such notice by the Company). If such method of disposition shall be an underwritten public offering, the holders of a request for registration majority of the Registrable Securities 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. The Company shall be obligated to register the Registrable Securities pursuant to Section 2(a) if at the time of above on two (2) occasions only; provided, that each such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, obligation shall be deemed satisfied only when a registration statement covering all Registrable Securities specified in respect 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 of Primary Shares in which the holders of Restricted Shares may include offering, all such Registrable Shares Securities shall have been sold pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; andthereto.
(iiii) with respect to If the Company shall request inclusion in any registration pursuant to this Section 2(a)2 of securities being sold for its own account, or if other persons shall request inclusion in any such registration, the Company may initiating holders shall, on behalf of all holders of Registrable Securities, offer to include such securities in such the registration subject to the terms of this Agreement.
(ii) Notwithstanding any Primary Shares or Other Shares; PROVIDEDother provision of this Section 2, HOWEVER, that 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 inclusion registration and underwriting shall be allocated among all such holders in proportion, as nearly as practicable, to the respective amounts of all Registrable Shares, Primary Shares and Other Shares proposed Securities held by such holders at the time of filing the registration statement. The Company shall not limit the number of Registrable Securities to be included in a registration statement pursuant to this Section 2 in order to include shares held by shareholders who are not holders of Registrable Securities or to include in such registration would interfere with statement securities registered for the successful Company’s own account. No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to limitation shall be included in such registration shall be included registration. To facilitate the allocation of shares in accordance with the following order:above provisions, the Company or the underwriters may round the number of shares allocated to any holder to the nearest 100 shares.
(Aiii) firstIf any holder of Registrable Securities disapproves of the terms of any underwriting, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant person may elect to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to withdraw from such registration being declared effective by the Commission underwriting by written notice to the Company Company, the managing underwriter and the initiating holders. The Registrable Securities withdrawn from the Investor; PROVIDED, HOWEVER, that such rescinded underwriting shall also be withdrawn from registration and such Registrable Securities shall not count as be transferred in a registration statement initiated pursuant public distribution prior to this Section 2 for purposes of clause one hundred eighty (i180) above if days after the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the effective date of such recessionregistration, or such other shorter period of time as the underwriters may require.
Appears in 1 contract
Demand Registration. (1) (i) SAP and its Affiliated Companies shall have the right, after the 180 day period following the IPO Date (or such other period as may be requested by the Company or an underwriter to facilitate compliance with applicable FINRA rules, or any successor provisions or amendments thereto), and (ii) Silver Lake and its Affiliated Companies shall have the right, after the two year period following the IPO Date, to request in writing (a “Request”) (which request shall specify the Registrable Securities intended to be disposed of by such requesting Holder, and the intended method of distribution thereof, including in a Rule 415 Offering, if the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering) that the Company register such portion of the requesting Holder’s Registrable Securities as shall be specified in the Request (a “Demand Registration”) by filing with the SEC, as soon as practicable (the “Filing Date”) after the receipt of such a Request by the Company, a registration statement (a “Demand Registration Statement”) covering such Registrable Securities, and the Company shall use its reasonable best efforts to have such Demand Registration Statement become effective with the SEC concurrently with filing or as soon as practicable thereafter, and, subject to Section 3.4, to keep such Demand Registration Statement Continuously Effective for a period of at least 24 months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following the date on which such Demand Registration Statement is declared effective (or for such shorter period which will terminate when all of the Registrable Securities covered by such Demand Registration Statement shall have been sold pursuant thereto) (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 Underwriters’ Representative pursuant to the provisions of this Agreement), including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Demand Registration Statement or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Demand Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder; provided, that such period during which the Demand Registration Statement shall remain Continuously Effective shall, in the case of an Underwritten Offering, and subject to Section 3.4, be extended for such period (if any) as the underwriters shall reasonably require, including to satisfy, in the judgment of counsel to the underwriters, any prospectus delivery requirements imposed by applicable law.
(2) The Company shall not be obligated to effect more than two Demand Registrations in any calendar year for Silver Lake or more than one Demand Registration for SAP in any calendar quarter. For purposes of the preceding sentence, a Demand Registration shall not be deemed to have been effected for SAP and its Affiliated Companies or Silver Lake and its Affiliated Companies (and, therefore, not requested for purposes of paragraph (a) Ifabove), following (i) unless a Demand Registration Statement with respect thereto has become effective, (ii) if after such Demand Registration Statement has become effective, the offer, sale or distribution of Registrable Securities thereunder is prevented by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason not attributable to SAP or its Affiliated Companies, or to Silver Lake or its Affiliated Companies, as the case may be, and such effect is not thereafter eliminated or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with any offering pursuant to such registration are not satisfied or waived other than by reason of a failure on the part of SAP or its Affiliated Companies, or Silver Lake and its Affiliated Companies, as the case may be. If the Company shall have complied with its obligations under ARTICLE III, a right to a Demand Registration pursuant to this Section 3.1 shall be deemed to have been satisfied upon the earlier of (i) the consummation date as of a merger, consolidation, tender offer, sale of assets or other disposition which all of the Company other than Registrable Securities included therein shall have been sold to the underwriters or distributed pursuant to the Merger Agreement, Demand Registration Statement and (ii) ninety (90) the date as of which such Demand Registration Statement shall have been effective for an aggregate period of at least 24 months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days after following the termination effectiveness of such Demand Registration Statement; 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 Merger Agreement Company or the failure Underwriters’ Representative pursuant to consummate the transactions contemplated thereby regardless provisions of this Agreement.
(3) Any request made pursuant to this Section 3.1 shall be addressed to the attention of the reasons therefore, General Counsel of the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request and shall specify the number of Registrable Shares proposed Securities to be registered (which shall be not less than 0.5% of the outstanding shares of Company Common Stock).
(4) Without the prior written consent of SAP, the Company may not include in a Demand Registration pursuant to this Section 3.1 shares of Company Capital Stock for the account of the Company or any Subsidiary of the Company, but, if and to the extent required by a contractual obligation (including Section 3.2), may, subject to compliance with Section 3.1(e), include shares of Company Capital Stock for the account of any other Person who holds shares of Company Capital Stock entitled to be included therein (including any other Holder entitled to be included therein pursuant to Section 3.2); provided, that if the Underwriters’ Representative of any offering described in this Section 3.1 shall have informed the Company and/or the Holder making the Request in writing that in its judgment there is a Maximum Number of shares of Company Capital Stock that SAP and its Affiliated Companies, Silver Lake and its Affiliated Companies, all other Holders and any other Persons entitled to participate in such Demand Registration may include in such offering, then the Company shall include in such Demand Registration: (i) first, (A) the number of Registrable Securities held by SAP and its Affiliated Companies (“SAP Securities”), if any, up to 1% of the aggregate outstanding Company Capital Stock, that are requested to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement the number of Registrable Securities held by Silver Lake and its Affiliated Companies (other than on Form S-4 or Form S-8 promulgated under the 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;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of “Silver Lake Securities”), if any, up to 90 days after the date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days 1% of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the aggregate outstanding Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVERCapital Stock, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed are requested to be included in such registration would interfere with the successful marketing and (including pricingC) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares Securities held by Q II and its Affiliated Companies (“Q II Securities”), if any, up to 0.25% of the Investor requesting aggregate outstanding Company Capital Stock, that its Registrable Shares are requested to be included in such registration pursuant to Section 2(a3.2 (clauses (A)-(C) collectively, the “Cap Amount”);
, except that if the number of shares of Company Capital Stock that may be included in such registration is less than the Cap Amount, the reduction shall be applied pro rata among the SAP Securities, Silver Lake Securities and Q II Securities based on each of their pro rata share of the Cap Amount (Bi.e., 44.44% SAP 12 Securities/44.44% Silver Lake Securities/11.12% Q II Securities); (ii) second, up to the Primary Sharesfull number of SAP Securities in excess of the Cap Amount, if any, that are requested to be included in such registration; and
(Ciii) third, up to the Other Shares. A full number of Silver Lake Securities and Q II Securities in excess of the Cap Amount, if any, that are requested to be included in such registration on a pro rata basis based on the number of shares of Company Capital Stock held by such Holders; (iv) fourth, such number of shares of Company Capital Stock duly requested to be included in such registration by other Persons, pro rata on the basis of the amount of such other shares of Company Capital Stock requested to be included or such other allocation method determined by the Company; and (v) fifth, securities the Company proposes to sell.
(5) No Holder may participate in any Underwritten Offering under this Section 2 3.1 and no other Person shall be permitted to participate in any such offering pursuant to this Section 3.1 unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under Section 3.1 hereof, each participating Holder and the Company and, except in the case of a Rule 415 Offering hereof, each other Selling Holder shall be a party to the underwriting agreement with the underwriters and may be rescinded required to make certain customary representations and warranties and provide certain customary indemnifications for the benefit of the underwriters.
(6) Any Holder having requested the Company to include any or all of its Registrable Securities in a registration statement under the Securities Act pursuant to Section 3.1 or Section 3.2 shall have the right to withdraw any such notice or direction with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to the Company prior to the effective date of such registration being declared effective by statement. In the Commission event of any such withdrawal, the Company shall not include such Registrable Securities in the applicable registration and such Registrable Securities shall continue to be Registrable Securities for all purposes of this Agreement (subject to the other terms and conditions of this Agreement). No such withdrawal shall affect the obligations of the Company with respect to the Registrable Securities not so withdrawn if any other Holder has requested pursuant to Section 3.1 or Section 3.2 that Registrable Securities be included in such registration; provided, however, that in the case of a Demand Registration, if such withdrawal shall reduce the number of Registrable Securities sought to be included in such registration below 0.5% of the outstanding shares of Company Common Stock, then the Company shall as promptly as practicable give each Holder seeking to register Registrable Securities notice to such effect and, within ten days following the mailing of such notice, such Holders still seeking registration shall, by written notice to the Company from Company, elect to register additional Registrable Securities to satisfy the Investor; PROVIDED, HOWEVER, foregoing minimum offering size or elect that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above not be filed or, if theretofore filed, be withdrawn. During such ten day period, the Company shall have not file such registration statement if not theretofore filed or, if such registration statement has been reimbursed for all out-of-pocket expenses incurred by theretofore filed, the Company in connection with such rescinded registration shall not seek, and provided further that no request shall use reasonable best efforts to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from prevent, the date of such recessioneffectiveness thereof.
Appears in 1 contract
Sources: Stockholders' Agreement (Qualtrics International Inc.)
Demand Registration. The Holder hereof shall have the right to request, on one (a1) Ifoccasion, that the Company prepare and promptly file a registration statement under the Securities Act of 1933, as amended (the "Securities Act") covering the shares of Common Stock then issuable upon exercise hereof (but not less than 500,000 shares) and the Company shall use its best efforts to cause such registration statement to become effective as expeditiously as possible. Upon the receipt of such written request, the Company shall give prompt written notice to all the Holders that it shall use its best efforts to effect such registration; provided, however, that the -------- ------- Company shall not be required to effect any registration pursuant to this Section 7.1:
(A) unless it shall have received written assurance that the Warrant will be exercised no later than the closing of the sale of the Common Stock to be sold pursuant to the related registration statement; or
(B) at any time prior to the expiration of a period of such number of days following the earlier of (i) the consummation date on which any previous distribution attempted in respect of a registration requested pursuant to this Section 7.1 shall have been terminated without being consummated as shall be determined by the lead managing underwriter of any such underwritten offering (or, in the event no underwriter shall have participated in such terminated distribution, by an investment banking firm of recognized national standing selected by the Holder) to be reasonably necessary and appropriate to effect the successful distribution of securities in a subsequent registration requested pursuant to this Section 7.1, but in any event not more than 90 days after any such registration shall have been terminated or not consummated; or
(C) at any time, as the Board of Directors of the Company shall have reasonably determined that (1) such registration would have a material adverse effect on any plan by the Company to engage in any acquisition of material assets or any merger, consolidation, tender offer, sale or similar transaction, (2) such registration would require the Company to file a registration statement which includes audited financial statements as of assets or any date other disposition than the date as of which the Company regularly prepares audited financial statements and if the preparation thereof would entail material out-of-pocket expense on the part of the Company, (3) such registration would have a material adverse effect on the distribution of a registered primary offering of equity securities by the Company other than pursuant to a registration statement filed no more than four months before the Merger Agreementdate of such demand in connection with which the Holder was offered the opportunity to participate pursuant to Section 7.2 hereof, or (4) the Company has received a written opinion of independent counsel, a copy of which will be provided to the Holder, that the securities requested to be registered are freely tradable without registration pursuant to Rule 144(k) (or any successor thereto) under the Securities Act and (ii) ninety (90) days after the termination applicable state securities laws; in any of the Merger Agreement events described in clauses (C) (1), (C) (2), (C) (3) or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore(C) (4), the Company shall be requested by the Investor may delay commencement of its efforts to effect the registration under pursuant to this Section 7.1 until the Securities Act earlier to occur of Registrable Shares, then, upon (x) the written request, delivered to expiration of the Company (90-day period following the date on which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under was requested or (y) such time as the Securities Act of the Registrable Shares which the Company has been so requested circumstances requiring such a delay in registration cease to register.
(b) Anything contained in Section 2(a) to the contrary notwithstandingexist, provided, however, that the Company shall not be obligated entitled to effect pursuant to Section 2(a) delay any such -------- ------- registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) for more than two registration statements initiated pursuant to Section 2(aone such 90-day period; and provided, further, -------- ------- however, that in any of the events described in clauses (C) (1), (C) (2), (C) ------- (3), or (BC) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a4), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration Holder shall be included in the following order:
(A) firstentitled to withdraw such request and, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in notwithstanding anything else provided herein, such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration demand shall not count as a the permitted demand registration statement initiated pursuant to as described in this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession7.1.
Appears in 1 contract
Demand Registration. (a) IfExcept as provided in Section 2.2(b) below, following after the earlier of (i) the consummation of a mergerDecember 29, consolidation, tender offer, sale of assets 1998 or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety the completion by the Company of an initial public offering under the Securities Act of any of its securities pursuant to a registration statement filed on Form S-1 or any successor form, upon the written request of GECFS that the Company effect pursuant to this Agreement the registration of Registrable Securities under the Securities Act (90) days after which requested shall specify the termination Registrable Securities so requested to be registered, the Proposed amounts thereof and the intended method of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforedisposition by GECFS), the Company shall be requested by the Investor will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of the Proposed Amount of Registrable SharesSecurities, thenfor disposition in accordance with the intended method of disposition stated in such request; PROVIDED, upon HOWEVER, that (i) if in the written requestgood faith judgment of the board of directors of the Company, delivered such registration would be detrimental to the Company and the board of directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to GECFS a certificated 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 GECFS in the case of an underwritten public offering or for more than 120 days if such method of disposition is not an underwritten public offering. The Company shall specify be entitled to include in any registration statement filed pursuant to this Section 2.2: (A) securities of the number Company held by any other security holder of Registrable Shares proposed the Company, and (B) in an underwritten public offering, securities of the Company to be included sold by the Company for its own account, except as and to the extent that (X) in the written opinion of the managing underwriter, which shall be an underwriter of nationally recognized standing (if such registrationmethod of disposition shall be an underwritten public offering), such inclusion would materially and adversely affect the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act marketing of the Registrable Shares Securities to be sold by GECFS or (Y) in the written opinion of an investment banker of nationally recognized standing jointly selected by GECFS and the Company (if such method of disposition is not an underwritten public offering), such inclusion would materially adversely affect the price at which the Company has been so requested Registrable Securities may be sold pursuant to registerthe plan of distribution.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the The Company shall not be obligated to take any action to effect any registration requested by GECFS pursuant to Section 2(a2.2(a) any registration under the Securities Act except in accordance with the following provisions:
hereof (i) after the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than has effected two registration statements initiated such registrations pursuant to Section 2(a), or (B) any this Agreement and each such registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has had been declared effective within the prior 90 days;
or ordered effective, (ii) during the Company may delay period starting with the date 30 days prior to the Company's estimate of the date of filing or effectiveness of any registration statement for of, and ending on a period of up to date 90 days after the effective date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such requestof, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such timeCompany initiated registration, provided that the company may only so delay the filing Company is using all reasonable efforts to cause such registration statement to become effective, or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from six months after the Company has effected one such registration pursuant to this Agreement and such registration has been declared or ordered effective, such six month period to commence on the date the registration statement was declared or ordered effective.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, PROVIDED that a registration that does not become effective after the Company has filed a registration statement with respect thereto solely by reason of the refusal of GECFS to proceed shall be deemed to have been effected by the Company at the request of GECFS unless GECFS shall have elected to pay all Company Registration Expenses in connection with such recessionregistration, (ii) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by GECFS, or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied other than by reason of some wrongful act or omission, or act or omission in bad faith, by GECFS.
Appears in 1 contract
Demand Registration. (a) IfAny Stockholder or group of Stockholders that Beneficially Owns, following in the earlier of aggregate Registrable Securities representing at least ten percent (i10%) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to outstanding shares of Common Stock held by all Stockholders shall have the Merger Agreementright, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered notice given to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registrationa “Demand Notice”), to request the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration register under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except and in accordance with the following provisionsprovisions of the Securities Act all or any portion of the Registrable Securities designated by such Stockholder(s); provided, however, that:
(i) the Stockholder shall not be permitted to give a Demand Notice, and the Company shall not be obligated required to use its best efforts take any of the actions to file and cause to become effective (A) more than two registration statements initiated register Registrable Securities pursuant to this Section 2(a7.2 until six (6) months following the completion of an initial public offering by the Company of shares of the Common Stock (an “IPO”), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) prior to the time the Company may delay becomes eligible to use Form S-3 (or any successor form) for the filing or effectiveness registration of any registration statement Registrable Securities for resale, such Stockholder(s), in the aggregate, shall only be entitled to three (3) Demand Registrations pursuant to the provisions of this Section 7.2 (provided, that each Stockholder entitled to deliver a period of up to 90 days after the date of a request for registration Demand Notice pursuant to Section 2(a2.1(a) if shall be entitled to initiate at least one (1) Demand Registration), unless any Demand Registration does not become effective or is not maintained in effect for the respective periods set forth in Section 7.2(e), in which case the relevant Stockholder(s) will be entitled to an additional Demand Registration pursuant hereto;
(iii) following the time of such request (A) that the Company is engagedeligible to use Form S-3 for the registration of Registrable Securities for resale, or has bona fide plans in no event shall the Company be required to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or more than three (B3) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause Demand Registrations during any twelve (A12) above and once pursuant to this clause (B) in any 18-month period; and
(iiiiv) with respect the Registrable Securities requested to any registration pursuant to Section 2(a)be registered constitute at least ten percent (10%) of the shares of Common Stock issued and outstanding on the date of this Agreement.
(b) Upon receipt of a Demand Notice, the Company may shall promptly (and in any event within ten (10) Business Days from the date of receipt of such Demand Notice), notify all other Stockholders of the receipt of such Demand Notice and allow them the opportunity to include Registrable Securities held by them in such the proposed registration by submitting their own Demand Notice. In connection with any Primary Shares or Other Shares; PROVIDEDDemand Registration that involves an underwritten offering in which more than one Stockholder participates, HOWEVER, in the event that if the managing underwriter advises the Company or underwriters for such offering advise such Stockholders in writing that the inclusion total number of all Registrable Shares, Primary Shares and Other Shares proposed Securities to be included in such registration would interfere with offering exceeds the successful marketing amount that can be sold in (or during the time of) such offering without delaying or jeopardizing the success of such offering (including pricing) the price per share of all such securitiesthe Registrable Securities to be sold), then the Registrable Securities to be offered shall be distributed amongst the participating Stockholders pro rata according to each Stockholder’s overall percentage of ownership in the Company at the time of delivery of the Demand Notice. In the event of such a pro-rata distribution, to the extent that any Stockholder (or Stockholders) has not submitted a Demand Notice, or withdraws from the underwriting, then those shares of Common Stock that would have been allocated pro-rata to the non-participating Stockholder if they had participated shall be allocated amongst the participating Stockholders, pro rata according to each participating Stockholder’s overall percentage of ownership in the Company.
(c) The Company, within forty-five (45) days of the date on which the Company receives a Demand Notice given by Stockholders in accordance with Section 7.2(a), shall file with the SEC, and the Company shall thereafter use its best efforts to cause to be declared effective as promptly as practicable, a Registration Statement on the appropriate form for the registration and sale, in accordance with the intended method or methods of distribution, of the total number of Registrable SharesSecurities specified by the Stockholders in such Demand Notice (a “Demand Registration”). Any Demand Registration may, Primary Shares at the request of the Stockholders submitting the Demand Notice Beneficially Owning a majority of the Registrable Securities to be registered pursuant to such Demand Registration, be a Shelf Registration pursuant to Rule 415 under the Securities Act.
(d) The Company shall use commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 7.2 continuously effective and Other Shares proposed usable for the resale of the Registrable Securities covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period of one hundred twenty (120) days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of a Shelf Registration, for a period of three (3) years from the date on which the SEC declares such Registration Statement effective, in either case (x) until such earlier date as all of the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement, and (y) as such period may be extended pursuant to this Section 7.2. The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods and all Interruption Periods occurring with respect to such Registration and such period and any extension thereof is hereinafter referred to as the “Effectiveness Period”.
(e) The Company shall be entitled to postpone the filing of any Registration Statement otherwise required to be prepared and filed by the Company pursuant to this Section 7.2, or suspend the use of any effective Registration Statement under this Section 7.2 (during which suspension each Stockholder Beneficially Owning Registrable Securities covered by the Registration Statement shall discontinue disposition of any Registrable Securities covered by the Registration Statement), for a reasonable period of time (a “Delay Period”), if the Board determines in good faith and in the Board’s reasonable judgment that the registration and distribution of the Registrable Securities covered or to be covered by such Registration Statement would materially interfere with any pending material financing, acquisition or corporate reorganization or other material corporate development involving the Company or any of its Subsidiaries or would require premature disclosure thereof and promptly gives the Stockholders written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the period of the anticipated delay; provided, however, that (i) the aggregate number of days included in all Delay Periods during any consecutive twelve (12) months shall not exceed the aggregate of (x) forty-five (45) days minus (y) the number of days occurring during all Interruption Periods during such consecutive twelve (12) months and (ii) a period of at least forty-five (45) days shall elapse between the termination of any Delay Period or Interruption Period and the commencement of the immediately succeeding Delay Period. If the Company shall so postpone the filing of a Registration Statement, the Stockholders of Registrable Securities to be registered shall have the right to withdraw the request for registration by giving written notice from the Stockholders of a majority of the Registrable Securities that were to be registered to the Company within forty-five (45) days after receipt of the notice of postponement or, if earlier, the termination of such Delay Period (and, in the event of such withdrawal, such request shall not be counted for purposes of determining the number of requests for registration to which the Stockholders of Registrable Securities are entitled pursuant to this Section 7.2). The Company shall not be entitled to initiate or continue a Delay Period unless it shall (A) concurrently prohibit sales by all other security holders under registration statements covering securities held by such other security holders and (B) in accordance with the Company’s policies from time to time in effect, forbid purchases and sales in the open market by Directors and executive officers of the Company.
(f) The Company shall not include any securities (whether for its own account or otherwise) that are not Registrable Securities in any Registration Statement filed pursuant to this Section 7.2 without the prior written consent of the Stockholders of a majority in number of the Registrable Securities covered by such Registration Statement. Any such securities so included shall be subject to the cut-back provisions of Section 7.2(b).
(g) Stockholders holding a majority in number of the Registrable Securities to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration a Registration Statement pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded 7.2 may, at any time prior to the effective date of the Registration Statement relating to such registration being declared effective Registration, revoke such request by the Commission by providing a written notice to the Company from the Investor; PROVIDED, HOWEVER, that revoking such rescinded registration request. Any such Demand Request so withdrawn shall not count as a be counted for purposes of determining the number of requests for registration statement initiated to which the Stockholders of Registrable Securities are entitled pursuant to this Section 2 for purposes of clause (i) above 7.2 if the Stockholders of Registrable Securities who revoked such request reimburse the Company shall have been reimbursed for all its out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement; provided, however, that, if such revocation was based on (i) the Company’s failure to comply in any material respect with its obligations hereunder or (ii) the institution by the Company in connection with of a Delay Period or the occurrence of any Interruption Period, such rescinded registration and provided further that no request to register Registrable Securities may reimbursement shall not be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionrequired.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested by the Investor Requisite Percentage of Stockholders, by Eckl▇▇▇ ▇▇ by Weil to effect the a registration under the Securities Act of Registrable SharesShares in accordance with this Section 2, then, upon then the Company shall promptly give written request, delivered notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Registrable Shares requested to be included in such proposed registration by such holders who respond in writing to the Company Company's notice within 30 days after delivery of such notice (which request response shall specify the number of Registrable Shares proposed to be included in such registration), the . The Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such registration on an appropriate form, including Form S-2 or S-3, if available, under the Securities Act of the Registrable Shares which the Company has been so requested to register; provided, however, that the Company shall not be obligated to effect any registration under the Securities Act in accordance with this Section 2 except in accordance with the following provisions:
(i) at the request of the Requisite Percentage of Stockholders, the Company shall not be obligated to file more than four registration statements in total which registration statements were initiated pursuant to this Section 2(a)(i) and became effective or which were rescinded by the Requisite Percentage of Stockholders without reimbursement as specified in Section 2(c);
(ii) at the request of Eckl▇▇▇, ▇▇e Company shall not be obligated to (A) file a registration statement prior to November 25, 2002, (B) file a registration statement after consummation of a Qualified Public Offering or (C) file more than three registration statements in total pursuant to this Section 2(a)(ii) which registration statements were initiated pursuant to this Section 2(a)(ii) and became effective or which were rescinded by Eckl▇▇▇ ▇▇▇hout reimbursement as specified in Section 2(c); and 6 8 (iii) at the request of Weil or the executor of his estate, the Company shall not be obligated to file a registration statement unless a Demand Event has occurred and Weil (or the executor of his estate, as applicable) has made a request prior to the following deadlines:
(A) in the event of Weil's death, 180 days after the date of death;
(B) in the event of Weil's permanent disability, 60 days following the final determination of such disability; and
(C) in the event of an Allowed Resignation or a Termination of Employment by the Company other than a Termination for Cause, 30 days after the date Weil ceases to be an employee of the Company.
(b) Anything contained in Section 2(a) herein to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act pursuant to Section 2(a) except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts file more than one registration statement pursuant to this Section 2 within any consecutive 180 day period;
(ii) the Company shall not be obligated to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which which, within the prior 90 day period, (A) Primary Shares are to be or were sold sold, (B) a registration statement has been filed and not withdrawn or (C) a registration statement has been declared effective within the prior 90 dayseffective;
(ii) 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a2(a)(i), the Company may include in such registration any Primary Shares or Other Shares; PROVIDEDprovided, HOWEVERhowever, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.
Appears in 1 contract
Sources: Registration Rights Agreement (Young America Holdings Inc)
Demand Registration. (a) If, following If at any time after the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition third anniversary of the Closing (as defined in the Purchase Agreement), or (ii) one year after the Company’s Initial Public Offering, Holders of at least fifty percent (50%) of the Registrable Securities request in writing that the Company file a registration statement under the Securities Act covering the registration of at least 50% of the outstanding Registrable Securities if the anticipated aggregate offering price, before underwriting discounts and commissions, would be at least $20,000,000, then the Company will (i) promptly give written notice of the proposed registration to all other than pursuant to the Merger AgreementHolders, and (ii) use its reasonable best efforts to cause such shares to be registered (together with any 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 receipt of such written notice from the Company); provided, however, that (a) the Company shall not be required to effect any such registration (i) within one-hundred eighty (180) days prior to the filing of, and one-hundred eighty (180) days following the effective date of, a registration subject to Section 2 hereof, provided the Company is actively employing in good faith reasonable efforts to cause such registration to become effective, (ii) if, within thirty (30) days of receipt of the written request from the Holders pursuant to this Section 3.1, the Company gives notice to the Holders of the Company’s intention to make its Initial Public Offering or a public offering within ninety (90) days after days, (iii) if the termination Holders making the request propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 4 below, (b) if the Company furnishes the requesting Holders with a certificate of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless President of the reasons thereforeCompany stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company and its shareholders for a registration statement to be filed in the near future, such registration obligation shall be deferred for not more than one hundred twenty (120) days, but the Company shall not be requested by the Investor entitled to effect the registration under the Securities Act of Registrable Sharessuch deferral more than once in any 12-month period, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(cc) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect more than a total of two demand registrations pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
3 provided that such registrations have been declared or ordered effective, and (id) the Company shall not be obligated required to use its best efforts to file and cause to become effective (A) more than two effect a registration statements initiated pursuant to Section 2(a), or (B) in any registration statement during any period particular jurisdiction in which any other registration statement (other than on Form S-4 or Form S-8 promulgated 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 Securities Act or any successor forms thereto) pursuant Act. Any such registration shall be underwritten by an underwriter which shall be mutually agreeable 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;
(ii) the Company and the Holders of a majority of the Registrable Securities requesting the registration. If any Holder disapproves of the terms of the underwriting, such person may delay elect to withdraw therefrom by written notice to the filing or effectiveness of any registration statement for Company, the managing underwriter and the Holders making the request. The Registrable Securities so withdrawn shall also be withdrawn from registration, and such Registrable Securities shall not be transferred in a period of up public distribution prior to 90 one hundred twenty (120) days after the effective date of a request for registration pursuant to Section 2(a) such registration; provided, however, that, if at by the time withdrawal of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such requestRegistrable Securities, a registration statement in respect greater number of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares Registrable Securities held by other Holders may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with (up to the successful marketing (including pricing) maximum of all such securitiesany limitation imposed by the underwriters), then the number of Company shall offer to all Holders who have included Registrable Shares, Primary Shares and Other Shares proposed Securities in the registration the right to be included in such registration include additional Registrable Securities. Holders shall be included so entitled to include additional Registrable Securities in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by upon written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 within 10 days from the date of such recessionoffer being made.
Appears in 1 contract
Demand Registration. (a) IfAt 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, following upon written notice from such Holder in the earlier of (imanner set forth in Section 12(i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of hereof requesting that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Holder or any of its Affiliates, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such 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 Registrable Shares 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 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 has been so requested to register.
(b) Anything contained determines reasonably and in Section 2(a) to good faith would have a material adverse effect on the contrary notwithstandingCompany, the Company shall not be obligated 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) 30 days after the Company makes such determination, provided, however, that the Company shall not be permitted to delay a requested registration in reliance on this clause (i) more than twice in any registration under the Securities Act except in accordance with the following provisions:12-month period;
(iii) the Company shall not be obligated to use its best efforts file a registration statement relating to file and cause a registration request pursuant to become effective this Section 2: (A) for so long as any lock-up restrictions provided for under the terms of Section 5(h) of the IPO Underwriting Agreement prohibit the Company from filing a registration statement relating to any such registration request, unless the filing of a registration statement relating to any such registration request has been consented to by the IPO Representatives in accordance with the terms of Section 5(h) of the IPO Underwriting Agreement, or (B) within a period of 60 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 two 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 statements initiated 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) 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 the number of occasions on which such Permitted Transferee or its Affiliates may exercise their rights under this Section 2).
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (i) unless the registration statement filed in connection therewith has become effective, (ii) if after such registration statement has become effective, it becomes subject to any stop order, or there is issued an injunction or other order or decree of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of the Registrable Securities so registered prior to the completion of the distribution thereof in accordance with the plan of distribution set forth in the registration statement or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied other than by reason of some act, misrepresentation or omission by a Holder and are not waived by the purchasers or underwriters.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the Fair Market Value of the Registrable Securities to be registered in connection with such offering shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering.
(d) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by any Holder pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engagedExchange Offer; provided, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVERhowever, that if the managing underwriter advises or other independent marketing agent for such offering (if any) determines that, in its opinion, the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares additional securities proposed to be sold will materially and adversely affect the offering and sale of the Registrable Securities to be registered in accordance with the intended method or methods of disposition then contemplated by such Holder, only the number or principal amount of such additional securities, if any (in excess of the number or principal amount of Registrable Securities), which, in the opinion of such underwriter or agent, can be so sold without materially and adversely affecting such offering shall be included in such registration. The rights of a Holder to cause the registration would interfere with the successful marketing (including pricing) of all additional Registrable Securities held by such securities, then the number Holder in any registration of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held Securities requested by the Investor requesting that its Registrable Shares be included in such registration another Holder pursuant to Section 2(a) shall be governed by the agreement of the Holders with respect thereto as provided in Section 11(a);.
(Be) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the The Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as be obligated to file a registration statement initiated relating to a registration request by a Holder pursuant to this Section 2 for purposes from and after such time as such Holder (together with any Affiliates of clause (isuch Holder) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register first owns Registrable Securities may be made pursuant to representing (assuming for this Section 2(apurpose the conversion, exchange or exercise of all Registrable Securities then owned by such Holder that are convertible into or exercisable or exchangeable for Common Stock of the Company) for a period less than 10% of 180 days from the date then issued and outstanding Common Stock of such recessionthe Company.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant Subject to the Merger Agreementconditions of this Section 5.1, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, if the Company shall be requested by receive a written request from the Investor Holders holding not less than a majority of the Registrable Securities then outstanding that the Company file a registration statement with respect to effect 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 Registrable Shares, then, upon the written request, delivered to the Company (which Securities that all Holders request shall specify the number of Registrable Shares proposed to be included registered pursuant to and in such registrationaccordance with this Agreement (a "Demand Registration"), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) Notwithstanding the foregoing, if the Company shall furnish to the contrary notwithstandingHolders requesting a registration statement pursuant to this Section 5.1, a certificate signed by the President or Chief Executive Officer of 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 filed in the near future, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Holders specified in Section 5.1(a); provided, however, that the Company may not utilize this right more than twice in any twelve-month period.
(c) The Company shall not be obligated required to effect or take any action to effect a registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions5.1:
(i) prior to the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under 548th day after the 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 daysEffective Date;
(ii) after 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once effected two Demand Registrations pursuant to this clause Section 5.1, and such registrations have been declared or ordered effective (Bwhich, for the avoidance of doubt, shall mean that the registrations shall have been effective for an aggregate of ninety (90) in any 18-month period; andcalendar days, or until all Registrable Securities covered thereby have been sold, if earlier);
(iii) with respect if the Holders making the request provided for in Section 5.1(a) propose to any registration 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 a request made pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession5.2 below.
Appears in 1 contract
Sources: Stockholders Agreement (Warburg Pincus Private Equity Viii L P)
Demand Registration. During the Registration Rights Period and only if NATK does not then have a registration statement filed with the Securities and Exchange Commission (a"SEC") Ifor an effective registration statement, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets Shareholders holding 75% or other disposition more of the Company other than pursuant to Newly Issued Shares (which, for purposes of such calculation, shall include the Merger Agreement, and (iiPledged Shares) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, may request in writing that the Company shall be requested by the Investor to effect the registration register such Newly Issued Shares under the Securities Act (a "Registration Request"). The Company shall use all reasonable efforts to expedite and effect the registration of such Newly Issued Shares that are the subject of the Registration Request (the "Registrable Shares"). The Company may include in any such registration (x) similar securities held by other parties with registration rights and (y) similar securities that the Company desires to register (provided, thenhowever, upon that the written requestNewly Issued Shares shall, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) maximum extent the Company is engagedthen permitted to do so, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) always have first priority with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the 4.12(b)). The Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request up to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of the Registration Request to file a registration statement with the SEC. Notwithstanding anything herein to the contrary any registration pursuant to this Section 4.12(b) (a "Demand Registration") will not be deemed to have been effected unless it has become effective and remained effective no less than 90 days (unless terminated with the consent of the holders of such recessionRegistrable Shares); provided further, than any such registration that does not become effective after the Company has filed a registration statement in accordance with the provisions of this Section 4.12(b) solely by reason of the refusal to proceed of the holders of such Registrable Shares that have made a Registration Request, including failure to comply with the provisions of this Agreement (other than any refusal to proceed based upon the advice of counsel to such holders that the registration statement, or the prospectus contained therein, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, or that such registration statement or such prospectus, or the distribution contemplated thereby, otherwise violates or would, if such distribution using such prospectus took place, violate any applicable state or federal securities law) shall be deemed to have been effected by the Company at the request of such holders. Notwithstanding anything herein to the contrary, the NATK shall not be obligated to perform in the aggregate more than one Demand Registration under the provisions of this Section 4.12(b).
Appears in 1 contract
Sources: Asset Purchase Agreement (North American Technologies Group Inc /Mi/)
Demand Registration. (a) IfSubject to the limitations contained in SECTION 5 and SECTION 6, at any time following July 15, 2000 as Holders of not less than a majority of the earlier issued and outstanding shares of Preferred Stock (ithe "DEMAND PERCENTAGE") shall give written notice to the consummation Company requesting the registration of the transfer of such number of shares of Preferred Stock as shall be requested by such requesting Holder or Holders (the "DEMAND NOTICE"), and thereupon, the Company shall, as expeditiously as possible, prepare and file a registration statement under the Securities Act covering the shares specified in such Demand Notice, and shall use its best efforts to cause such registration statement to become effective, all in accordance with the provisions of this Agreement; PROVIDED that, subject to the provisions of SECTION 3(c) hereof, the Company shall be obligated to effect registration pursuant to this SECTION 3(a) no more than once.
(b) Whenever the Company shall have received a demand pursuant to SECTION 3(a) above to effect the registration of any shares, the Company shall promptly give written notice to each other Holder and allow each such Holder the opportunity to participate in such registration. Each such Holder may, within ten (10) days after receipt of such notice, request in writing that all of such Holder's shares, or any portion thereof designated by such Holder, be included in the offering.
(c) The Company shall proceed as expeditiously as possible after receipt of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than demand pursuant to the Merger AgreementSECTION 3(a) above to file a registration statement and use its best efforts to effect, and (ii) within ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless date of the reasons thereforeDemand Notice, the Company shall be requested by the Investor to effect the registration of an offering under the Securities Act of Registrable SharesAct, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed such registration statement to be included in declared effective by the Commission not later than one hundred and eighty (180) days from the date of such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration Demand Notice under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company this SECTION 3. Such offering shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisionsinclude:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated shares specified in the Demand Notice given pursuant to Section 2(a), or (BSECTION 3(a) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to 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;above; and
(ii) all shares that other Holders have requested be included in 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 offering pursuant to Section 2(aSECTION 3(b) if at above; all to the time extent required to permit the Holders to dispose of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement shares in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month periodcompliance with applicable law; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, PROVIDED HOWEVER, that if the managing underwriter advises the Company of any such offering shall have determined that the inclusion of all Registrable Sharesany shares pursuant to SECTION 3(b) above shall adversely affect the price, Primary Shares and Other Shares proposed terms or number of securities to be included in underwritten and sold on behalf of the Holders initiating such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such demand registration pursuant to SECTION 3(a) above, then (x) the Company shall not be required to register any Securities pursuant to this Section 2(a);3 until such time as the Holders inform the Company that (1) such offering will not be an underwritten offering or (2) the managing underwriter has agreed that the inclusion of shares pursuant to SECTION 3(b) shall not adversely affect the price, terms or number of securities to be underwritten and sold on behalf of the Holders initiating such demand registration and (y) the Holders of the Demand Percentage shall be entitled to require the Company to file a registration statement with respect to the Securities notwithstanding the previous exercise of the rights of such Holders pursuant to this Section 3.
(Bd) second, A registration statement filed pursuant to this SECTION 3 shall remain effective until the Primary Shares; and
first to occur of (Ci) third, the Other Shares. A requested registration sale of all of the shares registered under this Section 2 may be rescinded prior to such registration being statement or (ii) the date two years following the date such registration statement was declared effective by the Commission, excluding any periods during which the Commission by written notice shall have issued any stop order with respect to such registration statement. If the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes is part of clause (i) above if a shelf offering, the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with be obligated to keep such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) statement effective for a period of 180 days from not less than two years.
(e) The Holders electing to participate in such offering shall have the right to select the managing underwriter to be engaged in connection with any such registration subject to the approval of the Company (which approval shall not be unreasonably withheld). Any such underwriter shall be a member firm of the New York Stock Exchange with a net capital of at least One-Hundred Million Dollars ($100,000,000).
(f) If, at any time prior to the effectiveness of the registration statement referred to in this SECTION 3, the Holders initiating the Demand Notice in SECTION 3(a) above elect to withdraw such registration statement prior to its date of effectiveness, the Company shall promptly withdraw such recessionregistration statement prior to its effectiveness and such withdrawing Holders shall forfeit the foregoing demand registration rights referred to in SECTIONS 3(a) AND (b) above. Notwithstanding the foregoing, the demand registration rights referred to in SECTIONS 3(a) OR (b) above shall survive a pre-effectiveness election to withdraw as set forth in this SECTION 3(f), if either (i) such withdrawing Holders reimburse the Company for all of its Registration Expenses in connection with the preparation of such withdrawn registration statement or (B) the non-demanding Holders elect to replace the withdrawing Holders (in which event such non-demanding Holders shall have been deemed to have exercised their demand registration right).
(g) To the extent that any Holders electing a demand registration determine as of the contemplated offering date not to sell their shares pursuant to an underwritten offering and such Holders do not reimburse the Company for Registration Expenses in the event that no Registration Statement is declared effective, such Holders are nonetheless entitled to have their shares registered pursuant to a "shelf registration" for the time period set forth in SECTION 3(d) above.
(h) The Company recognizes that money damages may be inadequate to compensate the Holders for a breach by the Company of its obligations under this Section, and the Company agrees that in the event of such a breach the Holder may apply for an injunction of specific performance or the granting of such other equitable remedies as may be awarded by a court of competent jurisdiction in order to afford the Holder the benefits of this SECTION 3 and that the Company shall not object to such application, entry of such injunction or granting of such other equitable remedies on the grounds that money damages will be sufficient to compensate the Holder.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of At any time (i) following the consummation of a merger, consolidation, tender offer, sale of assets or other disposition fourth anniversary of the Company other than final closing of the offering of securities pursuant to the Merger AgreementPlacement Memorandum and before the filing date of the Company's initial public offering of its Common Stock ("IPO"), and if the Company receives a written request from the holders of at least sixty percent (60%) of the Registrable Securities outstanding, that the Company 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 termination Company of a request pursuant to the Merger Agreement preceding clause (i) or sixty (60) days after receipt by the failure Company of a request pursuant to consummate the transactions contemplated thereby regardless preceding clause (ii)), and subject to the limitations of the reasons thereforeSubsection 2(b) hereof, the Company shall be requested by the Investor file a registration statement in accordance with Section 5 hereof, with respect to effect the registration under the Securities Act of all Registrable SharesSecurities which the Holders may specify in such request in writing within twenty (20) days after receipt of such notice from the Company.
(b) 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, thenthey shall 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
(d) If, in the written requestopinion of the managing underwriter of any such offering, delivered a limitation of the number of shares to be underwritten is required, the Company (which request Initiating Holders shall specify so advise all holders of Registrable Securities, and the number of Registrable Shares proposed Securities to be included 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. 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 Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under 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 Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are securities to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a)underwritten, the Company may include its securities for its own account in such registration any Primary Shares or Other Shares; PROVIDEDwith the prior agreement of the underwriter, HOWEVER, that if provided the managing underwriter advises the Company that the inclusion number of all Registrable Shares, Primary Shares Securities and Other Shares proposed to be other securities which would otherwise have been included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to underwriting will not thereby be included in such registration shall be included in the following order:limited.
(Ae) first, The Company is obligated to effect two (2) such registrations at the Registrable Shares held by request of the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated Holders pursuant to this Section 2 for purposes of clause 2.
(if) above Notwithstanding the foregoing, if the Company shall have been reimbursed for all out-of-pocket expenses incurred furnish to the Initiating Holders a certificate signed by the President of the Company stating that in connection with the good faith judgment of the Board of Directors of the Company, it would be detrimental to the Company and its shareholders for such rescinded registration and provided further that no request statement to register Registrable Securities may be made pursuant filed, the Company shall have the right to this Section 2(a) defer such filing for a period of 180 not more than one hundred twenty (120) days after receipt of the request from the date of such recessionInitiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) The Stockholder(s) may request that the consummation Company effect the registration of all or part of the Registrable Securities owned by the Stockholder(s) by delivering a merger, consolidation, tender offer, written notice to the Company signed by the requesting Stockholder(s) requesting such registration and describing the intended manner and timing of the sale of assets or other disposition of such Registrable Securities in reasonable detail: provided that no Stockholder may make such a request if its Registrable Securities are then included in the Company other than pursuant to the Merger AgreementShelf Registration, and provided, further, that the Stockholder(s) may not make more than two (2) such requests in the aggregate and no such request may be made within nine (9) months of any other request.
(ii) ninety Upon receipt of any request pursuant to Section 4(a)(i) hereof, the Company will notify each Stockholder who did not sign the request described in Section 4(a)(i) hereof and each such other Stockholder shall be entitled to join in the request by providing written notice thereof to the Company within ten (9010) days after the termination delivery of such notice by the Merger Agreement or Company.
(iii) Subject to the failure to consummate the transactions contemplated thereby regardless provisions of the reasons thereforeSection 6(b) hereof, the Company shall be requested by use its commercially reasonable efforts to file, as expeditiously as possible, but in any event no later than seventy-five (75) days after the Investor to effect delivery of the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered request to the Company pursuant to Section 4(a)(i) hereof, a Registration Statement on an appropriate Form covering all Registrable Securities so requested to be included therein (the "Demand Registration"), provided that the Company shall have no obligation to file any such registration statement if the then market value of the Registrable Securities to be included therein is less than $500,000 in the aggregate.
(iv) Subject to the provisions of Section 6(b) hereof, the Company agrees to use its commercially reasonable efforts to (A) cause the Registration Statement relating to the Demand Registration to become effective as promptly as practicable, and (y) subject to the second sentence of Section 5(b) hereof and clauses (2) and (3) of the last sentence of Section 6(b) hereof, keep such Registration Statement effective for the period (the "Demand Registration Period") ending in the earlier of sixty (60) days and the date on which request all Registrable Securities covered by such Registration Statement have been sold and the distribution contemplated thereby has been completed.
(v) The Company and any Other Holder may include securities in the Demand Registration effected pursuant to this Section 4(a); provided, the Stockholder(s) shall specify have priority sale rights over the number of Company and such Other Holders with respect to all Registrable Shares proposed Securities requested by them to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerDemand Registration.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.
Appears in 1 contract
Sources: Registration Rights Agreement (Internet Commerce Corp)
Demand Registration. In the event that, for any reason, TWUS is unable to cause a Resale Registration Statement or an Affiliate Registration Statement to be declared effective by the Commission within thirty (a30) If, days following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition Closing of the Company other than pursuant Reorganization or is unable or it is impracticable to keep such Resale Registration Statement or Affiliate Registration Statement continuously effective for the Merger Agreementperiod set forth in Section 2(a) or 2(b), and as applicable, TWUS shall, within ten (ii) ninety (9010) days after TWUS makes such determination or such shorter period as the termination Commission may provide to TWUS in the event such event involves an action or determination by the Commission (in which case TWUS shall immediately forward to the Investors, Hyperion, Triumph, the Employees and Paribas copies of all relevant correspondence to and from the Commission), give notice to the Investors, Hyperion, Triumph, the Employees and Paribas, as the case may be, of such fact and of the Merger Agreement circumstances giving rise to such inability or impracticability, so as to enable the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeInvestors, Hyperion, Triumph, the Company shall Employees and Paribas to exercise their rights as set for in this Section 2(c). At any time any shares of TWUS Preferred Stock or Registrable Shares are outstanding and a Resale Registration Statement or an Affiliate Registration Statement, as applicable, covering the resale of their respective Registrable Shares is not effective, TWUS shall, at the written request of any Investor, Hyperion, Triumph, the Employees or Paribas (and their permitted transferees and assigns), as the case may be requested by (a "Demand Notice"), cause to be filed as soon as practicable after the Investor to effect the registration date of such request a Registration Statement in accordance with Rule 415 under the Securities Act of Registrable Shares, then, upon the written request, delivered (or such other rule as is applicable to the Company proposed sale) relating to the resale by such Investor, Hyperion, Triumph, the Employees or Paribas (which request and their permitted transferees and assigns) of all or any portion of the Registrable Shares held by such Investor (including Conversion Shares and/or Dividend Shares issuable to such Investor), Hyperion, Triumph, the Employees or Paribas (and their permitted transferees and assigns) in accordance with the terms hereof, and shall specify use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter (a "Demand Registration"); provided, however, that TWUS shall not be required to file such Registration Statement unless the number of Registrable Shares proposed to be included in such registration), the Company shall, subject Demand Notice have a Fair Market Value in excess of $1,000,000. TWUS agrees to Section 2(c) below, promptly use its reasonable best efforts to effect such registration under keep the Securities Act Demand Registration continuously effective, after its date of effectiveness, with respect to the Registrable Shares which of the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstandingrequesting Investor, Hyperion, Triumph, the Company shall not be obligated to effect pursuant to Section 2(aEmployees or Paribas (and their permitted transferees and assigns) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after until the date of a request for registration pursuant to Section 2(a) if at the time of on which such request (A) the Company is engagedInvestor, or has bona fide plans to file within 60 days of the time of such requestHyperion, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a)Triumph, the Company may include in such registration Employees or Paribas (and their permitted transferees and assigns) no longer holds any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.
Appears in 1 contract
Sources: Registration Rights Agreement (Allied Healthcare International Inc)
Demand Registration. (a) If, following 2.2.1 If the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets Mandatory Registration Statement shall not have been declared or other disposition of ordered effective and the Company other shall receive a written request no earlier than pursuant to the Merger Agreement, and (ii) ninety (90) days following the Closing but no later than 22 months after the termination Closing from Investors holding more than $500,000 in value of the Merger Agreement or Registrable Securities then outstanding (the failure to consummate "Initiating Investor") that the transactions contemplated thereby regardless Company file a registration statement under the Securities Act covering the registration of the reasons thereforeRegistrable Securities, then the Company shall be requested by shall, within thirty (30) days of the Investor receipt thereof, give written notice of such request to effect all Investors, and subject to the limitations set forth herein, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Shares, then, upon Securities that the written request, delivered to the Company (which Investors request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerregistered.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the 2.2.2 The Company shall not be obligated required to effect a registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
2.2 if (i) the Mandatory Registration Statement has been declared or ordered effective, whether or not one or more holders of Registrable Securities elected not to register all of their respective shares in the Mandatory Registration Statement (ii) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than has previously effected two registration statements initiated registrations pursuant to this Section 2(a), 2.2 and such previous registrations has been declared or ordered effective or (Biii) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 the Registrable Securities covered by registrations pursuant to this Section 2.2 may be sold pursuant to Rule 144(k) promulgated under the Securities Act or any successor forms thereto) pursuant provision. Subject 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;
(ii) foregoing, 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 (A) the Company is engaged, or has bona fide plans to shall file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which covering the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only Securities and other securities so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed requested to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated registered pursuant to this Section 2 for purposes 2.2 as soon as practicable after receipt of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by request or requests of the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionInvestors.
Appears in 1 contract
Sources: Registration Rights Agreement (Elite Pharmaceuticals Inc /De/)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested in writing by the Investor Holders of at least a majority of the outstanding Registrable Securities (such request specifying the approximate number of Registrable Securities requested to be registered, the anticipated per share price range for such offering and an election as to whether such registration cover an Underwritten Offering), to effect the a registration under the Securities Act of Registrable SharesSecurities in accordance with this Section 2.1(a), then, upon the written request, delivered to then the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its reasonable best efforts to effect and facilitate such registration registration, as promptly as practicable, on an appropriate form under the Securities Act (and on an Automatic Shelf Registration Statement, if then available to the Company, or if an Automatic Shelf Registration Statement is not then available to the Company, on Form S-3, or if Form S-3 is not then available to the Company, on Form S-1 or such other form of registration statement as is then available to the Company), of the Registrable Shares Securities which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; provided, however, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within this Section 2.1(a) for 180 days following the prior 90 daysdate of this Agreement;
(ii) the Company may delay the filing or effectiveness of shall not be obligated to file 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause Section 2.1(a) contemplating a continuous or delayed offering pursuant to Rule 415 under the Securities Act (B) or any successor or similar rule adopted by the SEC then in any 18-month period; andeffect);
(iii) the Company shall not be obligated to file more than two (2) registration statements in total pursuant to this Section 2.1(a);
(iv) with respect to any the registration pursuant to this Section 2(a)2.1(a) or any Underwritten Offering pursuant to such registration statement filed pursuant hereto, the Company may include in such registration or offering any Primary Shares or Other Sharesequity securities other than Registrable Securities; PROVIDEDprovided, HOWEVERhowever, that if the managing underwriter Managing Underwriter or Underwriters of any Underwritten Offering or Overnight Underwritten Offering, as the case may be, advises the Company, and the Company advises the Purchasers in writing, that the inclusion total amount of all Registrable Sharessecurities that the Selling Holders and any other Persons intend to include in such Underwritten Offering or Overnight Underwritten Offering exceeds the number that can be sold in such Underwritten Offering or Overnight Underwritten Offering without being likely to have a material adverse effect on the price, Primary Shares and Other Shares proposed timing or distribution of the securities offered or the market for such securities, then the securities to be included in such registration would interfere Underwritten Offering or Overnight Underwritten Offering shall include the number of securities that such Managing Underwriter or Underwriters advises the Company can be sold without having such adverse effect, with such number to be allocated: (x) first, to the successful marketing (including pricing) of Registrable Securities held by all such securitiesSelling Holders, then pro rata based upon the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in Securities owned by each such Selling Holder at the time of such registration shall be included in or offering, as the following order:
case may be; (A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(By) second, to the Primary Sharessecurities to be offered and sold by or on behalf of the Company; and
and (Cz) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, securities that such rescinded registration shall do not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register constitute Registrable Securities may or securities to be made pursuant to this Section 2(a) for a period offered or sold by or on behalf of 180 days from the date of such recessionCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (California Resources Corp)
Demand Registration. (a) IfThe Company will use commercially reasonable efforts to commence by December 31, following 2000 the earlier process to register a public offering of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration its Common Stock under the Securities Act of (other than an offering pursuant to a registration statement on Forms S-4 or S-8 or on another form not available for registering the Registrable Shares, then, upon the written request, delivered Securities for sale to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registrationpublic), and to commence within 60 days of the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect effectiveness of such registration statement the process to register a secondary offering of its securities under the Securities Act of the Registrable Shares in which the Company has been so requested to register.
(b) Anything contained in registration rights under Section 2(a) 3 would be available to the contrary notwithstandingHolders; provided, however, that the Company shall not be obligated to effect pursuant file any such registration statement if it reasonably believes that because of market conditions or the status of the Company's business or financial condition, the filing at such time of such registration statement and the sale of its securities is not in the best interests of the Company, in which case the Company will use commercially reasonable efforts to Section 2(afile such registration statement as soon as in the reasonable belief of the Company market conditions or and its business and financial condition warrant.
(b) In the event the Company does not commence the process to register any registration of its securities under the Securities Act for sale to the public for its own account (for which the Holders have piggyback registration rights under Section 3 hereof and for which at least 50 percent of such Holders' shares have not been excluded by the underwriters pursuant to Section 3(b) hereof) or the account of the security holders (except with respect to registration statements on Forms S-4 or S-8 or on another form not available for registering the Registrable Securities for sale to the public) by September 1, 2000, then the Majority Holders shall have the right by written request to require that the Company effect a registration of the Registrable Securities and the Company will: (a) promptly give written notice of the proposed registration to all other Holders; and (b) as soon as practicable, use its commercially reasonable best efforts to effect all such registrations, qualifications and compliances (including, without limitations, the execution of an undertaking to file post-effective amendments, appropriate qualifications under the applicable blue sky or other state securities laws and appropriate compliance with exemptive regulations issued under the Securities Act and any other governmental requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders' Registrable Securities as are specified in accordance such request, together with all or such portion of the following provisions:
Registrable Securities of any Holder or Holders joining in such request as are specified in the written request given within 30 days after receipt of such written notice from the Company (i) "Demand Registration Rights"); provided, however, that the Company shall not be obligated to use its best efforts take any action to file and cause to become effective (A) more than two registration statements initiated effect such registration, qualification or compliance pursuant to Section 2(a), or this paragraph: (Bi) any after the Company has effected one such registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed this Section 2 and not withdrawn or such registration has been declared effective within the prior 90 days;
or ordered effective; or (ii) if the Company may delay amount of securities being offered by the filing or effectiveness of any registration statement for a period of up to 90 days after the date of a request Holders for registration pursuant to Section 2(a) if at the time of such request (A) the Company hereunder is engaged, or has bona fide plans to file within 60 days less than 75 percent of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; andSecurities.
(iiic) with respect Subject to any registration pursuant to clauses (i) and (ii) of Section 2(a2(b), the Company may include in such registration any Primary Shares or Other Sharesshall file a Registration Statement covering the Registrable Securities so requested to be registered as soon as reasonably practicable, after receipt of the request of the initiating Majority Holders; PROVIDEDprovided, HOWEVERhowever, that if 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 materially detrimental to the Company and its shareholders for such Registration Statement to be filed at the date filing would be required and it is therefore essential to defer the filing of such Registration Statement, the Company shall have an additional period of not more than 90 days within which to file such Registration Statement.
(d) In addition to the foregoing, to the extent such terms and procedures are not inconsistent with the provisions of this Section 2, the terms and procedures of the registration process for the sale of the Registrable Securities shall also be in accordance with Section 3 of this Agreement (other than Section 3(b)) as if the Holders were selling their Registrable Securities pursuant to the Piggyback Registration referred to in Section 3. If a registration pursuant to this Section 2 involves an underwritten offering and the managing underwriter advises the Company that in writing that, in its opinion, the inclusion number of equity securities (including all Registrable SharesSecurities) which the Company, Primary Shares the Holders and Other Shares proposed any other persons intended to be included in such registration would interfere with exceeds the successful marketing largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold, the Company will include in such registration (including pricingi) of first, all such securitiesthe securities the Holders have elected to sell, then and (ii) second, to the extent that the number of Registrable Sharessecurities which the Holders have elected to sell pursuant to this Section 2 is less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, Primary Shares and Other Shares proposed the number of securities determined to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred offering by the Company in connection and any other holders of Common Stock to the extent they have registration rights under agreements with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionCompany.
Appears in 1 contract
Sources: Merger Agreement (Emarketplace Inc)
Demand Registration. (a) If, following the earlier of Upon a Registration Notice from (i) the consummation of a mergerMSLEF II, consolidation, tender offer, sale of assets or other disposition on behalf of the Morgan Holders specified therein, to both the Company other than pursuant to the Merger Agreementand SIBV or (i▇) ▇▇▇V, and (ii) ninety (90) days after the termination on behalf of the Merger Agreement or the failure SIBV Holders specified therein, to consummate the transactions contemplated thereby regardless of the reasons therefore, both the Company shall be requested by and MSLEF II, in each case in the Investor to manner set forth in Section 12(g) hereof, requesting that the Company effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Morgan Holders or held by such SIBV Holders, thenas the case may be, and ▇▇▇▇▇fying, among other things, the number of Registrable Securities which the Morgan Holders or the SIBV Holders, as the case may be, desire to re▇▇▇▇▇▇ and the intended method or methods of disposition of such Registrable Securities, the Company will use its best efforts to effect (at the earliest possible date) 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, however, that the Company shall not be required to effect an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act; and provided, further, that:
(i) in the event that the Company has delivered a Registration Notice in accordance with the provisions of Section 3, neither MSLEF II nor SIBV may deliver a Registration Notice pursuant to this Section 2(a) until the conclusion of such Company Registration Process;
(ii) in the event that SIBV has delivered a Registration Notice in accordance with the provisions of this Section 2(a), neither MSLEF II nor the Company may deliver a Registration Notice pursuant to this Section 2(a) until the conclusion of such SIBV Registration Process;
(iii) in the event that MSLEF II has delivered a Registration Notice in accordance with the provisions of this Section 2(a), neither SIBV nor the Company may deliver a Registration Notice until the conclusion of such MSLEF II Registration Process; and
(iv) if, while a Registration Process is pending pursuant to this Section 2, the Chief Financial Officer of the Company, after consultation with outside counsel for the Company, has determined in good faith that the filing of a registration statement would require the disclosure of material information which the Company has a bona fide business purpose for preserving as confidential, the Company shall not be required to effect a registration pursuant to this Section 2 until the earlier of (A) the date upon which such material information is disclosed to the public or ceases to be material, and (B) 90 days after the Chief Financial Officer of the Company makes such good faith determination (a "Company Delay"); provided, however, the Company shall only be entitled to a Company Delay once in connection with any MSLEF II Demand in any 270-day period during the term of this Agreement and once in connection with any SIBV Demand in any 270-day period during the term of this Agreement.
(b) In the event that any registration pursuant to a request by MSLEF II under this Section 2, shall involve, in whole or in part, an underwritten offering, then MSLEF II shall have the right to designate one or more nationally recognized investment banking firms as the sole managing or co-managing underwriter(s) of such underwritten offering which may consist of or include, at the option of MSLEF II, Morgan Stanley & Co. Incorporated ("MS&Co."). If MS&Co. shall not b▇ ▇▇▇ s▇▇▇ ▇▇▇aging underwriter or shall be a co-managing underwriter, then any sole or other co-managing underwriters selected by MSLEF II shall be reasonably acceptable to the Company.
(c) MSLEF II shall have the right to effect up to but not more than two (2) registrations and SIBV will have the right to effect up to but not more than two (2) registrations (each such registration, whether requested by MSLEF II or SIBV, a "Demand"), in each case, pursuant to this Section 2; provided, however, that, without giving effect to any "cutback" imposed by any underwriter, (i) each MSLEF II Demand shall effect the registration and sale of at least 1,000,000 shares of Common Stock (as adjusted for any reclassification, recapitalization, subdivision, stock dividend, stock split or combination of the Company's outstanding securities after the date hereof) and (ii) each SIBV Demand shall effect the registration and sale of at least an aggregate of at least 1,000,000 shares of Common Stock (as adjusted for any reclassification, recapitalization, subdivision, stock dividend, stock split or combination of the Company's outstanding securities after the date hereof). MSLEF II shall have the right to request registration and effect its two registrations (such effective registrations, the "Initial MSLEF II Registrations") prior to SIBV delivering a Registration Notice to MSLEF II and the Company under Section 2(a); provided that, in the event that the Initial MSLEF II Registrations are not effected on or prior to the third anniversary of the effectiveness of this Agreement (such three-year period, the "MSLEF II Exclusive Period"), then SIBV may request registration in accordance with the terms of this Agreement.
(d) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by MSLEF II or SIBV pursuant to this Section 2 shall not be deemed to have been effected for purposes of Section 2, (i) unless it has become effective and maintained effective in accordance with subsection 6(b), (ii) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a material misrepresentation or a material omission by MSLEF II or any of the Selling Holders, on the one hand, or SIBV or any of the Selling Holders, on the other, as the case may be, (iii) 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 some act or omission by MSLEF II or any of the Selling Holders, on the one hand, or SIBV or any of the Selling Holders, on the other, as the case may be, or (iv) unless the registration is deemed to be an effected Demand pursuant to Section 5.
(e) In the event of any underwritten registration of Registrable Securities in which the number of Registrable Securities requested by MSLEF II (in the case of a MSLEF II Demand) or SIBV (in the case of a SIBV Demand) to be included in such registration exceeds the number which the managing underwriter(s) advise MSLEF II or SIBV, as the case may be, in writing can be sold, then there shall be included in such registration the number of Registrable Securities which can be sold, allocated, unless MSLEF II or SIBV, as the case may be, notifies the Company of a different method of allocation, pro rata among the Morgan Holders or the SIBV Holders, as the case may be, on the basis ▇▇ ▇▇e number of Registrable Securities requested to be included therein by each such Morgan Holder or SIBV Holder.
(f) In connection wit▇ ▇▇▇ ▇▇▇▇▇▇ made by MSLEF II pursuant to this Section 2 (in the case of SIBV, only from and after, but not before, the expiration of the MSLEF II Exclusive Period), each of the Company and SIBV shall have the right to cause the registration of securities for sale for its own account (the "Piggyback Securities"), upon the written request, delivered to request made by the Company and/or SIBV within 10 days after receipt of MSLEF II's Registration Notice (which request shall specify the number of shares intended to be disposed of and the intended method of disposition thereof), in addition to the Registrable Shares proposed Securities of the Morgan Holder(s) being sold pursuant to such MSLEF II Demand, if the ▇▇▇▇▇▇ ▇▇ ▇▇gistrable Securities requested by MSLEF II to be included in such registration does not exceed the number which the managing underwriter(s) advise MSLEF II in writing can be sold; provided that in the event the managing underwriter(s) advise MSLEF II in writing (with a copy to the Company and SIBV) that, in their good faith opinion, inclusion of all such Piggyback Securities would materially and adversely affect the offering and sale of the Registrable Securities then contemplated to be sold by the Morgan Holders, including the per share price thereby obtainable, th▇▇▇ ▇▇all only be included in such registration: (1) first, all securities requested to be included in such registration by the Morgan Holders, (2) second, up to the full number of Piggyback Secur▇▇▇▇▇ requested to be included in such registration by the SIBV Holders (if SIBV is entitled hereunder to make such request) in excess of the number or dollar amount of the Morgan Holders' Securities to be included in such registration which, ▇▇ ▇he good faith opinion of such underwriter(s), can be sold without materially and adversely affecting such offering (and, if less than the full number of such Piggyback Securities, allocated pro rata among the SIBV Holders on the basis of the number of securities requested to be included therein by each SIBV Holder), (3) third, up to the full number of Piggyback Securities requested to be included in such registration by the Company shallin excess of the number or dollar amount of the Morgan Holders' Securities and SIBV Piggyback Securities (if applica▇▇▇) ▇hich, subject in the good faith opinion of such underwriter(s), can be so sold without materially and adversely affecting such offering. MSLEF II may require that any such Company Piggyback Securities or SIBV Piggyback Securities (if applicable) be included in the offering proposed by the Morgan Holders on the same terms and conditions as such Morgan Holde▇▇' ▇▇gistrable Securities are included therein.
(g) In connection with any Demand made by SIBV pursuant to this Section 2(c2, each of the Company and MSLEF II shall have the right to cause the registration of securities for sale for its own account and, in the case of MSLEF II, for the account of the Morgan Holders, upon the written request made by the Company and/or ▇▇▇▇▇ II within 10 days after receipt of SIBV's Registration Notice (which request shall specify the number of shares intended to be disposed of and the intended method of disposition thereof), in addition to the Registrable Securities of the SIBV Holder(s) belowbeing sold pursuant to such SIBV Demand, promptly if the number of Registrable Securities requested by SIBV to be included in such registration does not exceed the number which the managing underwriter(s) advise SIBV in writing can be sold; provided that in the event the managing underwriter(s) advise SIBV in writing (with a copy to the Company and MSLEF II) that, in their good faith opinion, inclusion of all such Piggyback Securities would materially and adversely affect the offering and sale of the Registrable Securities then contemplated to be sold by the SIBV Holders, including the per share price thereby obtainable, there shall only be included in such registration: (1) first, all securities requested to be included in such registration by the SIBV Holders, (2) second, up to the full number of Piggyback Securities requested to be included in such registration by the Morgan Holders in excess of the number or dollar amount of the SIBV ▇▇▇▇▇▇s' Securities to be included in such registration which, in the good faith opinion of such underwriter(s), can be sold without materially and adversely affecting such offering (and, if less than the full number of such Piggyback Securities, allocated pro rata among the Morgan Holders on the basis of the number of securities requested to ▇▇ ▇▇cluded therein by each Morgan Holder), (3) third, up to the full number of Piggyback Securi▇▇▇▇ ▇▇▇▇▇▇▇▇d to be included in such registration by the Company in excess of the number or dollar amount of the Morgan Holders' Piggyback Securities and the SIBV Securities which, ▇▇ ▇▇▇ good faith opinion of such underwriter(s), can be so sold without materially and adversely affecting such offering. SIBV may require that any such Morgan Holders' Piggyback Securities or Company Piggyback Securities ▇▇ ▇▇cluded in the offering proposed by the SIBV Holders on the same terms and conditions as such SIBV Holders' Registrable Securities are included therein.
(h) In connection with each MSLEF II Demand, MSLEF II agrees to use its reasonable best efforts to effect sell or cause to be sold the lesser of (x) all Registrable Securities that it owns at the time of such registration under the MSLEF II Demand and (y) all Registrable Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect managing underwriter advises MSLEF II pursuant to Section 2(a2(e) can be sold in such registration; provided that notwithstanding the foregoing, MSLEF II and any registration Morgan Holder who has requested that its Registrable Securities be i▇▇▇▇▇▇▇ ▇▇ ▇▇ch MSLEF II Demand shall be under no obligation to sell its Registrable Securities pursuant to the Securities Act except in accordance first MSLEF II Demand if the price per share of Common Stock on the New York Stock Exchange or The NASDAQ National Market on the Effective Date for such MSLEF II Demand has decreased by 5% since the date on which MSLEF II delivered its Registration Notice with the following provisions:respect to such MSLEF II Demand.
(i) Concurrently with the delivery by MSLEF II of a Registration Notice to the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any MSLEF II shall notify in writing each of the Morgan Holders of its intent to cause the registration statement during any period and sale of R▇▇▇▇▇▇able Securities. Such notice shall offer each other Morgan Holder the opportunity to include in which any other the registration statement (other than on Form S-4 or Form S-8 promulgated under the such nu▇▇▇▇ ▇▇ ▇▇▇▇▇trable Securities Act or any successor forms thereto) pursuant held by such Morgan Holder as such Morgan Holder may request in writing to which Primary Shares are MSLEF ▇▇ ▇▇▇▇▇▇ ▇ ▇usiness d▇▇▇ ▇▇ ▇▇▇▇▇▇t of MSLEF II's notice, subject to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;Section 2(e).
(iij) the Company may delay the filing or effectiveness Promptly (but in no event later than 2 business days) after receipt by MSLEF II 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular an SIBV Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration Notice pursuant to Section 2(a), MSLEF II shall notify in writing each of the Company may Morgan Holders of its receipt of such Registration Notice. Such not▇▇▇ ▇▇all offer each Morgan Holder the opportunity to include in the registration such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares nu▇▇▇▇ ▇▇ ▇▇▇▇▇trable Securities held by the Investor requesting that its Registrable Shares be included such Morgan Holder as such Morgan Holder may request in such registration pursuant writing to MSLEF ▇▇ ▇▇▇▇▇▇ ▇ ▇usiness d▇▇▇ ▇▇ ▇▇▇▇▇▇t of MSLEF II's notice, subject to Section 2(a2(g);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.
Appears in 1 contract
Demand Registration. (a) IfAt any time, following the earlier of (i) the consummation of upon written notice from a merger, consolidation, tender offer, sale of assets or other disposition of Holder requesting that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Holder, then, upon the written request, delivered to the Company which notice (which request a "Demand Registration Notice") shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts Best Efforts to effect such 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 Registrable Shares which intended method or methods of disposition stated in such request, provided that:
(i) if prior to receipt of a Demand Registration Notice, the Company has been so 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 to register.
would materially and adversely affect or interfere with such financing plan of the Company or its subsidiaries (b) Anything contained in Section 2(a) to the contrary notwithstandinga "Transaction Blackout"), the Company shall not be obligated required to effect a registration pursuant to this Section 2(a) any registration under until the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective earliest of (A) more than two registration statements initiated pursuant to Section 2(a)the abandonment of such offering, or (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 statement during any period of the written notice from the Company referred to above in which any other registration statement this subsection (other than on Form S-4 or Form S-8 promulgated under the 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 daysi);
(ii) if, while a registration request is pending pursuant to this Section 2(a), the Company 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 or effectiveness of any a 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 (A) would be materially detrimental to the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such timeCompany, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.not
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) On one occasion after the consummation of a merger, consolidation, tender offer, sale of assets or other disposition date of the Company other than pursuant to Closing of Biogen's first Share Purchase under this Article 3 but before the Merger Agreement, and (ii) ninety (90) days after the termination second anniversary of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless closing date of the reasons thereforeMerger, Biogen may request that all of the Company shall Shares owned by Biogen as of such date be requested by the Investor to effect the registration registered under the Securities Act on a Registration Statement on Form S-3 (or a successor form) (the "Resale S-3"). ---------- Upon the receipt of Registrable Sharessuch request Targeted shall use its Reasonable Commercial Efforts (as defined below) to effect the Resale S-3 as soon as practicable, thenat Targeted's expense, upon and to cause the written requestResale S-3 to remain effective until the earlier of 180 days from the effective date of the Resale S-3 and the date on which all the Shares covered by the Resale S-3 have been sold; provided, delivered however, that Targeted shall not be required to effect the Company Resale S-3 if (which request shall specify A) if Form S-3 is not available for such registration; (B) the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) Resale S-3 would have an aggregate price to the contrary notwithstanding, public of less than $1,000,000; (C) Targeted shall furnish to Biogen a certificate signed by the Company shall not be obligated to effect pursuant to Section 2(apresident of Targeted stating that (1) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company Targeted is engaged, engaged or has bona fide plans to file within 60 days of the time of such request, engage in a registration statement in respect of a firm commitment underwritten registered public offering or is engaged in any other activity that, in the good faith judgment of Primary Shares in which Targeted's board of directors, would be adversely affected by the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 requested registration or (B2) a Material Transaction exists the requested registration would involve initial or continuing disclosure obligations that are not in the best interests of Targeted's shareholders at such time, provided that in which event Targeted shall have the company may only so delay right to defer the filing of the Resale S-3 for a period of not more than 90 days after receipt of the request; or effectiveness of a particular Registration Statement once pursuant to clause (AD) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as Targeted has already effected a registration statement initiated on Form S-3 or Form S-1 within the 180-day period preceding the date of such request. As used in this Agreement, "Reasonable Commercial Efforts" shall be determined under the law of the state ----------------------------- of Delaware, and shall mean such good faith efforts as are consistent with efforts made by businesses of similar size and resources in a similar circumstance and context to achieve the particular result in a timely manner, but shall not require a party to take actions that would be commercially unreasonable to such party in that circumstance.
(ii) In the event Targeted effects the Resale S-3 pursuant to this Section 2 for purposes 3.6.2
(a) Targeted shall indemnify and hold harmless Biogen, each underwriter of clause such Shares, if any, and each other person, if any, who controls Biogen or such underwriter within the meaning of the Securities Act or the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which Biogen or such underwriter or controlling person may become subject under the Securities Act, the Exchange Act, state securities or blue sky laws or otherwise, insofar as such losses, claims, damages or liabilities (ior actions in respect thereof) above if arise out of or are based on any untrue statement or alleged untrue statement of a material fact contained in the Company shall have been reimbursed for all out-of-pocket expenses incurred by Resale S-3, any preliminary prospectus or final prospectus contained in the Company Resale S-3 (the "Prospectus"), ---------- or arise out of or are based on the omission or alleged omission to state a material fact required to be stated in the Resale S-3 or necessary to make the statements in the Resale S-3 not misleading; and Targeted will reimburse Biogen or such underwriter or controlling person in connection with investigating or defending any such rescinded registration loss, claim, damage, liability or action; provided, however, that Targeted will not be liable in any such case to the extent that any such loss, claim, damages or liability arises out of or is based on an untrue statement or alleged untrue statement or omission or alleged omission made in the Resale S-3, the Prospectus or any amendment or supplement of the Resale S-3 or the Prospectus in reliance on and provided further in conformity with written information furnished to Targeted by or on behalf of Biogen expressly for use in the Resale S-3 or the Prospectus or any untrue statement in such prospectus or omission of a material fact required to make a statement not misleading in the Prospectus that no request is corrected in any subsequent Prospectus that was delivered to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from Biogen before the date of such recessionpertinent sale or sales by Biogen.
Appears in 1 contract
Demand Registration. (a) IfSubject to Section 10, if the Company shall receive from the Investor a written request that the Company effect any registration with respect to any outstanding Registrable Securities held by the Investor, the Company shall as soon as practicable use its best efforts to register all Registrable Securities which the Investor requests to be registered; provided, that the Company shall not be obligated to file a registration statement pursuant to this Section 2:
(A) prior to the twelve-month anniversary of the Initial Public Offering;
(B) which would result in the registration of a greater number of the 10% Option Shares than the Investor would then be able to sell within a three-month period pursuant to Rule 144;
(C) within 90 days following the earlier effective date of any registered offering of the Company's securities to the general public;
(iD) if, at the consummation time of such request, the Investor is able to immediately dispose of all of its Registrable Securities pursuant to the provisions of Rule 144;
(E) if the Company has effected such a mergerregistration within the previous nine-month period; or
(F) after the Company has effected five such registrations pursuant to this Section 2 and such registrations have been declared or ordered effective. Subject to the foregoing clauses (A) through (F), consolidationthe Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, tender offerbut in any event within thirty (30) days (ninety (90) days in the event the Company is not eligible to use Form S-3 or any successor form thereto) after receipt of the request of the Investor and shall use reasonable best efforts to have such registration statement declared effective by the Commission within thirty (30) days (ninety (90) days in the event the Company is not eligible to use Form S-3 or any successor form thereto) after filing whether or not all Registrable Securities requested to be registered can be included; provided, sale of assets or other disposition however, that if the Company shall furnish to the Investor a certificate signed by the President of the Company other than pursuant stating that in the good- faith judgment of the Board of Directors it would be seriously detrimental to the Merger AgreementCompany and its shareholders for such registration statement to be filed within such thirty-day (30-day) or ninety-day (90-day) period, as applicable, and (ii) it is therefore essential to defer the filing of such registration statement, the Company shall have an additional period of not more than ninety (90) days after the termination expiration of the Merger Agreement or the failure initial period within which to consummate the transactions contemplated thereby regardless of the reasons thereforefile such registration statement; provided, that during such time the Company shall be requested by the Investor to effect the may not file a registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed statement for securities to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use issued and sold for its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerown account.
(b) Anything contained If the Investor intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as a part of its request. In such event or if an underwriting is required by subsection 2(c), if so requested in Section 2(awriting by the Company, the Investor shall negotiate with an underwriter selected by the Investor with the consent of the Company (such consent not to be unreasonably withheld) with regard to the contrary notwithstanding, underwriting of such requested registration. The Company and the Company Investor shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except enter into an underwriting agreement in accordance customary form with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), underwriter or (B) any registration statement during any period in which underwriters selected for such underwriting. Notwithstanding any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness provision of any registration statement for a period of up to 90 days after the date of a request for registration pursuant to this Section 2(a) if at the time of such request (A) the Company is engaged2, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company in writing that marketing factors require a limitation of the inclusion number of all shares to be underwritten, the Company shall so advise the Investor, and the number of shares of Registrable SharesSecurities that may be included in the registration and underwriting shall be reduced accordingly; provided, Primary Shares and Other Shares proposed however, -------- that securities of other holders to be included in such registration would interfere with the successful marketing (including pricing) statement as a result of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed piggyback registration rights as well as any securities to be included in such registration offered by the Company, its officers and employees shall be included in excluded from the following order:
(A) first, registration statement prior to the exclusion of any Registrable Shares Securities held by the Investor requesting that its Investor. Any Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company Securities which are excluded from the Investor; PROVIDED, HOWEVER, that underwriting by reason of the underwriter's marketing limitation shall be withdrawn from such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionregistration.
Appears in 1 contract
Demand Registration. (a) If, At any time following the earlier date of (i) the consummation this Agreement and upon written notice from a Holder or Holders of a merger, consolidation, tender offer, sale of assets or other disposition at least 51% of the Company other than pursuant to Registrable Securities in the Merger Agreement, and (iimanner set forth in Section 10(h) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to hereof requesting that WAXS effect the registration under the Securities Act of any or all of the Registrable Shares, then, upon the written request, delivered to the Company Securities held by such Holder as described in Section 2(b) (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registrationSecurities), the Company shall, subject to Section 2(c) below, promptly WAXS shall use its reasonable best efforts to effect such effect, in the manner set forth in Section 5, the registration under the Securities Act of the such Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except for disposition in accordance with the following provisionsintended method or methods of disposition stated in such request; provided that:
3 (i) the Company shall not be obligated if, prior to use its best efforts to file and cause to become effective (A) more than two receipt of a registration statements initiated request pursuant to this Section 2(a), WAXS 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 WAXS's underwriter (B) any or outside advisors, if no underwriter), a registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 and on the terms requested could materially and adversely affect or interfere with such financing plan of such request WAXS or its subsidiaries (A) the Company is engageda "Transaction Blackout"), or has bona fide plans WAXS shall not be required to file within 60 days of the time of such request, effect a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) 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.
(ii) 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 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 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 2(a), whether in reliance on this subsection (ii) or on subsection (i) above, twice during the term of this Agreement.
(iii) WAXS shall not be obligated to file more than one (1) registration statement under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any event if such registration request is for a period number of 180 days Registrable Securities which have an aggregate market value less than $1 million. If such request shall be for an underwritten offering, such request must be for a number of Registrable Securities which have an aggregate market value of at least $5 million.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a): (A) if it is withdrawn based upon material adverse information relating to WAXS that is different from the date 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 such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, 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, WAXS shall have the right to designate the underwriter or underwriters, including the lead managing underwriter of such recessionunderwritten offering.
Appears in 1 contract
Sources: Registration Rights Agreement (World Access Inc /New/)
Demand Registration. The Holder hereof shall have the right to request, on one (a1) Ifoccasion, that the Company prepare and promptly file a registration statement under the Securities Act of 1933, as amended (the "Securities Act") covering the shares of Common Stock then issuable upon exercise hereof (but not less than 500,000 shares) and the Company shall use its best efforts to cause such registration statement to become effective as expeditiously as possible. Upon the receipt of such written request, the Company shall give prompt written notice to all the Holders that it shall use its best efforts to effect such registration; provided, however, that the Company shall not be required to -------- ------- effect any registration pursuant to this Section 7.1:
(A) unless it shall have received written assurance that the Warrant will be exercised no later than the closing of the sale of the Common Stock to be sold pursuant to the related registration statement; or
(B) at any time prior to the expiration of a period of such number of days following the earlier of (i) the consummation date on which any previous distribution attempted in respect of a registration requested pursuant to this Section 7.1 shall have been terminated without being consummated as shall be determined by the lead managing underwriter of any such underwritten offering (or, in the event no underwriter shall have participated in such terminated distribution, by an investment banking firm of recognized national standing selected by the Holder) to be reasonably necessary and appropriate to effect the successful distribution of securities in a subsequent registration requested pursuant to this Section 7.1, but in any event not more than 90 days after any such registration shall have been terminated or not consummated; or
(C) at any time, as the Board of Directors of the Company shall have reasonably determined that (1) such registration would have a material adverse effect on any plan by the Company to engage in any acquisition of material assets or any merger, consolidation, tender offer, sale or similar transaction, (2) such registration would require the Company to file a registration statement which includes audited financial statements as of assets or any date other disposition than the date as of which the Company regularly prepares audited financial statements and if the preparation thereof would entail material out-of-pocket expense on the part of the Company, (3) such registration would have a material adverse effect on the distribution of a registered primary offering of equity securities by the Company other than pursuant to a registration statement filed no more than four months before the Merger Agreementdate of such demand in connection with which the Holder was offered the opportunity to participate pursuant to Section 7.2 hereof, or (4) the Company has received a written opinion of independent counsel, a copy of which will be provided to the Holder, that the securities requested to be registered are freely tradable without registration pursuant to Rule 144(k) (or any successor thereto) under the Securities Act and (ii) ninety (90) days after the termination applicable state securities laws; in any of the Merger Agreement events described in clauses (C) (1), (C) (2), (C) (3), or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore(C) (4), the Company shall be requested by the Investor may delay commencement of its efforts to effect the registration under pursuant to this Section 7.1 until the Securities Act earlier to occur of Registrable Shares, then, upon (x) the written request, delivered to expiration of the Company (90-day period following the date on which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under was requested or (y) such time as the Securities Act of the Registrable Shares which the Company has been so requested circumstances requiring such a delay in registration cease to register.
(b) Anything contained in Section 2(a) to the contrary notwithstandingexist, provided, however, that the Company shall not be obligated entitled to effect pursuant to Section 2(a) delay any such -------- ------- registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) for more than two registration statements initiated pursuant to Section 2(aone such 90-day period; and provided, further, -------- ------- however, that in any of the events described in clauses (C) (1), (C) (2), (C) ------- (3), or (BC) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a4), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration Holder shall be included in the following order:
(A) firstentitled to withdraw such request and, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in notwithstanding anything else provided herein, such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration demand shall not count as a the permitted demand registration statement initiated pursuant to as described in this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession7.1.
Appears in 1 contract
Demand Registration. (a) IfUpon the written request of one or more record holders of Securities, following which request will state the earlier intended method of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of by such holders and will request that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon all or part of the written request, delivered to the Company Registerable Common Stock (which request shall specify the number as defined herein) of Registrable Shares proposed to be included in such registration)holders, the Company shallwill, subject within 10 days after receipt of such request, give written notice of such requested registration to Section 2(call record holders of Securities, Series A Securities, Series B Securities and Warrant Stock (as defined herein), and thereupon (except as expressly provided herein) below, promptly will use its best efforts to effect such the registration ("Demand Registration") under the Securities Act of (x) the Registrable Shares 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, shares of Series A Registerable Common Stock (as defined herein), shares of Series B Registerable Common Stock (as defined herein) and shares of Warrant Stock, the record holders of which have made written request to the Company has been so requested to register.for registration thereof within 30 days after the receipt of such written notice from the Company, provided that:
(ba) Anything contained in Section 2(a) the Company shall be required to effect only two Demand Registrations hereunder, each of which must be initially requested by the contrary notwithstanding, 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 obligated required to effect more than one registration during any one-year period pursuant to this Section 2(a7.1, Paragraph 7(a) of the Series A Agreement or Section 7.1 of the Series B Agreement (except that, upon request of any record 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 an unlimited number of registrations on Form S-3, or a similar short form registration under statement, which registrations (hereinafter referred to as "Short Form Registrations") shall not be counted for purposes of this Section 7.1(a) as the Securities Act except in accordance with Demand Registration which the following provisions:Company is required to effect);
(ib) 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 record holders of Securities, Series A Securities, Series B Securities and Warrant Stock. In that event, the other record holders of Securities, Series A Securities, Series B Securities and Warrant Stock shall have the right to include their shares of Registerable Common Stock, Series A Registerable Common Stock, Series B Registerable Common Stock and Warrant Stock in the underwriting (unless otherwise mutually agreed by a majority in interest of the record holders of Securities, Series A Securities, Series B Securities and Warrant Stock). 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 180 days, as shall reasonably be requested by any underwriter;
(c) the Company shall not be obligated to use its best efforts to file include and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (shall not permit third parties other than on Form S-4 or Form S-8 promulgated under (i) the 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;
holders of Series A Securities, (ii) the Company may delay the filing or effectiveness holders of any registration statement for a period of up to 90 days after the date of a request for registration pursuant to Section 2(aSeries B Securities, and (iii) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may Warrant Stock to include Registrable Shares pursuant to Section 3 or (B) additional securities in a Material Transaction exists at such time, provided that Demand Registration without the company may only so delay consent of the filing or effectiveness holders of a particular Registration Statement once pursuant to clause (A) above majority of the shares of Registerable Common Stock, Series A Registerable Common Stock and once pursuant to this clause (B) Series B Registerable Common Stock included in any 18-month period; andsuch Demand Registration, voting together as a class;
(iiid) if a Demand Registration under this Section 7.1 is in connection with respect to any registration pursuant to Section 2(a)an underwritten public offering, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that and if the managing underwriter advises underwriters advise the Company in writing that in their opinion the inclusion amount of all Registrable SharesRegisterable Common Stock, Primary Shares Series A Registerable Common Stock, Series B Registerable Common Stock and Other Shares proposed Warrant Stock requested to be included in such registration would interfere exceeds the amount of such Registerable Common Stock, Series A Registerable Common Stock, Series B Registerable Common Stock and Warrant 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, Series A Registerable Common Stock, Series B Registerable Common Stock or Warrant Stock (notwithstanding any consent obtained in accordance with Section 7.1(c) hereof), the successful marketing (including pricing) amount of all Registerable Common Stock, Series A Registerable Common Stock, Series B Registerable Common Stock and Warrant Stock requested to be included which in the opinion of such securitiesunderwriters can be sold, then pro rata among the holders of Registerable Common Stock, Series A Registerable Common Stock, Series B Registerable Common Stock and Warrant Stock requesting inclusion on the basis of the number of Registrable Sharesshares of Registerable Common Stock, Primary Shares Series A Registerable Common Stock, Series B Registerable Common Stock and Other Shares proposed Warrant 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 included registered in such registration shall a Demand Registration under this Section 7.1, the record holders of Securities will be included in the following order:entitled to an additional Demand Registration under this Section;
(Ae) first, if the Registrable Shares held by Company shall furnish to the Investor holders requesting that its Registrable Shares be included in such a registration pursuant to this Section 2(a)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 have the right to defer such filing for a period of not more than 120 days after receipt of the initial request for registration under this Section 7.1; provided, however, that the Company may not utilize this right more than once in any one-year period;
(Bf) second, registrations under this Section 7.1 will be on a form permitted by the Primary Sharesrules 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
(Cg) thirdnotwithstanding anything else contained herein, the Other Shares. A requested registration under this Section 2 may Company will not be rescinded prior required to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as effect a registration statement initiated Demand Registration pursuant to this Section 2 for purposes 7.1 unless the aggregate number of clause (i) above if shares of Common Stock to be registered exceeds 20% of the Company shall have been reimbursed for all out-of-pocket expenses incurred shares of Common Stock then held by the Company in connection with holders of the Securities or issuable to such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period holders upon conversion of 180 days from the date of such recessionShares.
Appears in 1 contract
Demand Registration. (a) If, At any time following the earlier date of this Agreement and upon written notice from a Holder or Holders of at least twenty percent (i20%) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Registrable Securities (without giving effect to any limitation on exercise or conversion) in the manner set forth in Section 11(h) hereof requesting that Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable Shares, then, upon the written request, delivered to the Company Securities held by such Holder as described in Section 2(b) (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registrationSecurities), the Company shall, subject to Section 2(c) below, promptly shall use its reasonable best efforts to effect such 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 Registrable Shares which 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 has been so 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 to registerregistration 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) Anything contained 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 contrary notwithstandingpublic 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 effect file more than two (2) registration statements under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any event if such a registration request is for a number of Registrable Securities which have an aggregate market value less than $1 million. If such a request shall be for an underwritten offering, such a request must be for a number of Registrable Securities which have an aggregate market value of at least $5 million.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the 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 shares of Registrable Securities which were the subject matter of the request; (C) 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 court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, less than ninety (90%) percent of the Registrable Securities requested to be registered can be completely distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Company shall have the right to designate the underwriter or underwriters, including the lead managing underwriter of such underwritten offering, subject to the reasonable approval of the Holders.
(d) Holders other than the Holder initiating the demand pursuant to Section 2(a) any registration under the Securities Act except in accordance and holders of other registrable securities with the following provisions:
(i) the right to participate in a Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period shall have the right to include their shares of Registrable Securities or other registrable securities, as the case may be, in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), . In connection with those registrations in which multiple Holders or holders of other registrable securities with the Company may include right to participate in such registration any Primary Shares or Other Shares; PROVIDED("Piggy-back Rights Holders") participate, HOWEVERin the event the facilitating broker/dealer or, that if in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the Company that number of shares to be sold, the inclusion number of all Registrable Shares, Primary Shares and Other Shares proposed shares to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares sale or underwriting and Other Shares proposed to be included in such registration shall be included in allocated pro rata among the following order:Holders and the holders seeking registration pursuant to piggy-back registration rights otherwise granted by Company on the basis of the estimated proceeds from the sale of the securities covered by such registration.
(Ae) first, Company shall have the right to cause the registration of additional securities for sale for the account of Company in any registration of Registrable Shares held Securities requested by the Investor requesting that its Registrable Shares be included in such registration a Holder pursuant to Section 2(a);
) which involves an underwritten offering; provided that Company shall not have the right to cause the registration of such additional securities if such Holder is advised in writing (Bwith a copy to Company) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated lead managing underwriter designated pursuant to this Section 2 for purposes 2(c) that, in such firm's good faith opinion, registration of clause (isuch securities in addition to those securities included pursuant to Sections 2(a)-(d) above if hereof would materially adversely affect the Company shall have been reimbursed for all out-of-pocket expenses incurred by offering and sale of the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of then contemplated by such recessionHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Kronos Advanced Technologies Inc)
Demand Registration. (a) If, following Upon written notice from a Holder of Registrable Securities in the earlier of (imanner set forth in Section 11(g) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of hereof requesting that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Holder, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly will use its best efforts to effect such (at the earliest practicable date) the registration under the Securities Act of such Registrable Securities for disposition in accordance with the Registrable Shares which intended method or methods of disposition stated in such request (including, but not limited to, an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act (a "Rule 415 Offering") if the Company has been so requested is then eligible to register.register such Registrable Securities on Form S-3 (or a successor form)), except that:
(bi) Anything contained if, after the Primary AMR Ownership Reduction, upon receipt of a registration request pursuant to this Section 2(a), the Company is advised in writing setting forth specific reasons (with a copy to the person requesting registration pursuant to this Section 2(a)), by a nationally recognized independent investment banking firm selected by the Company that, in such firm's opinion, a registration at the time and on the terms requested would materially and adversely affect any underwritten public equity financing by the Company that had been contemplated by the Company prior to receipt of notice requesting registration pursuant to this Section 2(a) and that had been planned to the contrary notwithstandingbe completed within 90 days of such notice (a "Transaction Blackout"), the Company shall not be obligated required to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period until the earliest to occur of 180 days from (A) the date abandonment of such recession.financing, (B) 90 days after the completion of such financing, (C) the termination of any "hold back" or "lock up" period obtained by the underwriter(s) selected by the Company from any person in connection with such financing or (D) 165 days after receipt by the Holder requesting registration of written notice of such Transaction Blackout (together with the copy of the investment banking firm opinion referred to above in this subsection (i)) (the written notice of such Transaction Blackout and a copy of the investment banking firm opinion must be given to the Holder of Registrable Securities requesting registration pursuant to this Section 2(a) within 15 days of receipt of such the registration request);
(ii) if, after the Primary AMR Ownership Reduction, while a registration request is pending pursuant to this Section 2(a), the general counsel of the Company determines in good faith that (A) the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or (B) the Company then is unable to comply with SEC requirements, the Company shall not be
Appears in 1 contract
Sources: Registration Rights Agreement (Sabre Group Holdings Inc)
Demand Registration. (a) If, following At any time and from time to time prior to the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition seventh anniversary of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination closing of the Merger Agreement or Public Offering, upon written notice from a Holder in the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, manner set forth in Section 12(h) requesting that the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of such Holder’s Registrable SharesSecurities, then, upon the written request, delivered to the Company (which request notice shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts to effect such effect, in the manner set forth in Section 5, the registration under the Securities Act of the such Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except for disposition in accordance with the following provisionsintended method or methods of disposition stated in such request, provided that:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective if (A) more than two registration statements initiated pursuant prior to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 days after the date 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) if at until the time 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 Company is engaged, or has bona fide plans to file within 60 days filing of the time of such request, a registration statement in respect would require the disclosure of material information that the Company has a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 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 Material Transaction exists at registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such timematerial 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 may only so Company shall not be permitted to delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to requested registration in reliance on this clause (Bii) more than once in any 1824-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 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 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 Holders represents less than 5% of the issued and outstanding common equity of the Company.
(b) Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration requested by a Holder pursuant to Section 2(a) shall not be deemed to have been effected (and, therefore, not requested) (A) unless the registration statement filed in connection therewith has become effective, (B) if, after such registration statement has become effective, it is interfered with respect by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, 90% or more of the Registrable Securities requested to be registered cannot be completely distributed in accordance with the 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 have been effected (and, therefore, requested), provided that, where a request is withdrawn prior to the filing of a registration statement with the SEC, such Holder can require the Company to disregard for purposes of Section 2(a)(iii) one such requested registration in any six month period; and
(iii) nothing herein shall 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 Section 2(a) shall involve, 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 by a Holder pursuant to Section 2(a), ; provided that the Company may shall not have the right to include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if additional securities to the extent the managing underwriter of the offering advises such Holder in writing (with a copy to the Company that the inclusion of all Registrable SharesCompany) that, Primary Shares and Other Shares proposed to be included in such firm’s good faith opinion, registration of such additional securities would interfere with materially and adversely affect the successful marketing (including pricing) offering and sale of all the Offered Registrable Securities then contemplated by such securitiesHolder, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration except that Code shall be included in the following order:
(A) first, the required to include Registrable Shares held Securities owned by the Investor requesting that its Registrable Shares be included in such registration pursuant Pre-IPO Stockholders to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective extent required by the Commission by written notice to the Company from the Investor; PROVIDEDInvestors Securities Agreement and Executive Securities Agreements, HOWEVER, that such rescinded registration shall not count in each case as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from effect on the date of such recessionhereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Houston Wire & Cable CO)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant Subject to the Merger Agreementconditions of this Section 2.2, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, if the Company shall be requested by receive a written request from the Investor to effect Investors that the Company file a registration statement under the Securities Act covering the registration of Registrable the Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), then the Company shall, subject to Section 2(c) belowas soon as reasonably possible, promptly use its best efforts to effect such registration under file a Form SB-2 with the Securities Act of SEC registering the Registrable Shares which the Company has been so requested to registerShares.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the The Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions2.2:
(i) if Form SB-2 is not available for such offering by the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 daysInvestors;
(ii) if the Investors propose to sell Shares and such other securities (if any) at an aggregate price to the public of less than $50,000;
(iii) if within thirty (30) days of receipt of a written request from Investors pursuant to this Section 2.2, the Company may delay gives notice to Investors of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement;
(iv) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of, any other registration statement filed by the Company in regard to the Shares;
(v) if the Company shall furnish to the Investors a certificate signed by the Chairman of the Board of Directors of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form SB-2 registration to be effected at such time, in which event the Company shall have the right to defer the filing or effectiveness of any the Form SB-2 registration statement for a period of up to 90 not more than ninety (90) days after receipt of the request of the Investors under this Section 2.2; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period;
(vi) if the Company has, within the twelve (12) month period preceding the date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which already effected two (2) registrations on Form SB-2 for the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated Investors pursuant to this Section 2 for purposes 2.2 and such registrations have been declared or ordered effective; or
(vii) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of clause process in effecting such registration, qualification or compliance.
(ic) above if Subject to the foregoing, the Company shall have been reimbursed for all out-of-pocket expenses incurred by file a Form SB-2 registration statement covering the Shares as soon as practicable after receipt of the requests of the Investors.
(d) The Company in connection with such rescinded registration and provided further that no request shall use its best efforts to register Registrable Securities may cause a Registration Statement on Form SB-2 relating to the resale of the Shares to be made pursuant to this Section 2(adeemed effective within one hundred eighty (180) for a period of 180 days from the date of such recessionthis Agreement.
Appears in 1 contract
Demand Registration. (a) IfSubject to the terms of this Agreement, following in the earlier event that the Company shall, not sooner than the second (2nd) anniversary of the date of this Agreement, and not later than the fifth (5th) 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 at an aggregate offering price to the 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 so notify all Holders.
(b) Subject to the 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 at an aggregate offering price to the 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 so notify all Holders.
(c) Upon written request of any Holder given within eighteen (18) days after the receipt by DMRFS, DMR or the Shareholder Representative, as is appropriate, from the Company, of a notification pursuant to Section 3.3(a) or 3.3(b) above, the Company will use commercially reasonable efforts to cause such of the Registrable Securities as may be requested by any Holder (including the Holder giving the initial notice of intent to offer) to be registered under the Act as expeditiously as possible (a "Demand Registration"). The Company shall not be required to effect more than one (1) Demand Registration pursuant to Section 3.3(a) above, and the Company shall not be required to effect more than one (1) Demand Registration pursuant to Section 3.3(b) above.
(d) If (i) in the consummation of a merger, consolidation, tender offer, sale of assets or other disposition good faith judgment of the Company other than pursuant Board, a Demand Registration would be materially detrimental to the Merger AgreementCompany and the Board concludes, as a result, that it is essential to defer the filing of 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 the termination receipt of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforerequest for a Demand Registration, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included and more than once in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerany 12-month period.
(be) Anything contained In the case of any registration, filing or qualification of Registrable Securities pursuant to this Section 3.3, DMRFS or the Shareholder Representative, as the case may be, shall be responsible for sending all notifications to the Holders, and for obtaining the signatures of the Holders to all documents required to be delivered by the Holders pursuant to this Agreement in Section 2(a) connection with such registration, filing or qualification, and all costs and expenses associated with sending such notices or obtaining such signatures, any provision of this Agreement to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.
Appears in 1 contract
Sources: Shareholders Agreement (Bingham Financial Services Corp)
Demand Registration. (a) If, following the earlier of Subject to subparagraphs (i) the consummation of a merger), consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety and (90iii) below and at any time beginning 180 days after the termination date of execution of this Agreement, holders of at least 30% of the Merger Agreement or the failure total number of outstanding Registrable Shares (assuming conversion of all shares of Preferred Stock into Common Stock) may make a written request to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the a registration under the Securities Act of all or a portion of the Registrable Shares, then, upon the written request, delivered to the Company Shares held by such requesting holders in accordance with this Section 2 (which a "Demand Registration"). The request shall specify the number of Registrable Shares proposed to be included in such Demand Registration and the intended method of distribution, which may be pursuant to a shelf registration), the . The Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such registration a Demand Registration, as expeditiously as possible, on an appropriate form under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; provided, however, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration Demand Registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts file more than five registration statements in total pursuant to this Section 2, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Registrable Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
days or (iiB) the Company may delay has determined in good faith that the filing or effectiveness of any a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for a period of up preserving as confidential, such filing to be delayed until the date which is 90 days after the date of a such request for registration pursuant to this Section 2(a) if at the time of such request (A) ), provided, that the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once registration statement pursuant to this clause (BSection 2(a)(ii)(B) in on one occasion during any 18twelve-month period; and
(iii) with respect to any registration the Demand Registration pursuant to this Section 2(a)2, the Company may include in such registration any Primary Demand Registration securities that are not Registrable Shares or Other Shares; PROVIDEDif, HOWEVERin the view of the managing underwriter, that if the inclusion thereof will not adversely affect such offering. If such Demand Registration is an underwritten offering and the managing underwriter advises the Company in writing that the inclusion of all Registrable Shares, Primary Shares and the Other Shares proposed to be included in such registration Demand Registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration Demand Registration shall be included in the following order:
(A) firstFirst, up to the number of Registrable Shares held by requested to be included which in the Investor requesting that its opinion of the managing underwriter can be sold without adversely affecting the marketability of the offering, pro rata among the respective holders thereof on the basis of the amount of Registrable Shares requested to be included in the offering by each such registration pursuant to Section 2(a)holder;
(B) secondSecond, any Other Shares the Primary SharesCompany proposes to be included in the Demand Registration; and
(C) thirdThird, any Other Shares requested to be included in the Other SharesDemand Registration by any holder having contractual registration rights.
(b) The holders of Registrable Shares requesting a Demand Registration may, in the notice delivered pursuant to paragraph 2(a) above, elect that such Demand Registration be an underwritten offering. Upon such election, such holders shall select one or more nationally recognized investment banks to act as the managing underwriter and shall select any additional investment banks to be used in connection with such offering, provided that such managing underwriter and investment banks must be reasonably satisfactory to the Company. The Company shall, together with all holders proposing to sell Registrable Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration under this Section 2 request for a Demand Registration may be rescinded prior to such registration being declared effective by the Commission withdrawn by written notice to the Company from by the Investor; PROVIDEDholders a majority of the Registrable Shares to be included in such registration with the following consequences:
(i) If such request for a Demand Registration is withdrawn prior to the filing date of the registration statement, HOWEVER, that such rescinded withdrawn registration shall not count as a registration statement initiated pursuant to this Section 2 Demand Registration for purposes of clause paragraph (ia) above;
(ii) If such request for a Demand Registration is withdrawn after the filing date of the registration statement but prior to its effective date, such withdrawn registration shall not count as a Demand Registration for purposes of paragraph (a) above if the participating holders (x) have reimbursed the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded withdrawn registration and provided further or (y)
(1) reasonably believed that no request the registration statement contained an untrue statement of material fact or omitted to register Registrable Securities may state a material fact required to be stated therein or necessary to make the statements made pursuant to this Section 2(atherein not misleading, (2) for a period of 180 days from notified the date Company of such recessionfact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to correct such alleged misstatement or omission; and
(iii) A registration statement that becomes effective shall count as a Demand Registration for purposes of paragraph (a) above unless (x) the registration statement becomes subject to a stop order, injunction or other order of the Commission or any other governmental agency or court or (y) 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 some act or omission by the holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Amc Entertainment Inc)
Demand Registration. In case the Company shall receive from Initiating Holders a written request that the Company effect a registration with respect to at least 2,000,000 shares of Common Stock that constitute Registrable Securities (as adjusted for stock splits, stock dividends, recapitalizations and similar events) the Company will:
(a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition promptly give written notice of the Company proposed registration to all other than pursuant Holders so they may have an opportunity to consider joining in such registration, which they may do (subject to the Merger terms and provisions of this Agreement, and ) at their election within ten (ii) ninety (9010) days after the termination receipt of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless notice of the reasons therefore, the Company shall be requested proposed registration by the Investor to effect the registration under the Securities Act of Registrable SharesCompany; and
(b) as soon as practicable, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its reasonable best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act Act) as may be so requested and 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 Shares which 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 has been so requested pursuant to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, ); 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(a) any registration under the Securities Act except in accordance with the following provisions2:
(i) In any particular jurisdiction in which the Company shall not would be obligated required to use its best efforts execute a general consent to file service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under except as may be required by the 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 daysAct;
(ii) Prior to June 30, 2000;
(iii) Within the Company may delay one hundred twenty (120) day period immediately following the filing or effectiveness of any registration statement for a period of up to 90 days after the effective date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of pertaining to a firm commitment underwritten public offering of Primary Shares in which Common Stock for the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness account of a particular Registration Statement once pursuant to clause shareholder (Aincluding Purchaser) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), of the Company may include in such who has exercised a demand right to register shares of Common Stock (other than a registration relating solely to a Commission Rule 145 transaction, a registration relating solely to employee benefit plans, or a registration statement on Form S-3 (or any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such similar short-form registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(astatement));
(Biv) second, Within the Primary Shares; and
sixty (C60) third, day period immediately following the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as date of a registration statement initiated pursuant on Form S-3 (or any similar short-form registration statement) pertaining to this Section 2 a firm commitment underwritten public offering of Common Stock for purposes the account of clause (i) above if another shareholder of the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request who has exercised a demand right to register Registrable Securities may be made pursuant to this Section 2(a) for a period shares of 180 days from the date of such recession.Common Stock (other than a
Appears in 1 contract
Sources: Registration Rights Agreement (Healtheon Webmd Corp)
Demand Registration. (a) IfThe Company agrees that, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days at any time after the termination Closing Date, upon the request of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeEmerson (a "Demand Registration"), the Company shall be requested by the Investor to effect the it will file a registration statemen▇ (▇ "▇egistration Statement") under the Securities Act of Registrable Shares, then, upon the written request, delivered as to the Company (which request shall specify the number of shares of Registrable Shares proposed to be included Securities specified in such registration), the Company shall, request subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained limitations described in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
5.01(b); provided that (i) the Company shall not be obligated to use its best efforts required to file and cause to 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 Demand Registration ▇▇ ▇▇▇ twelve month period, (iii) the Registrable Securities for which a Demand Registration has been requested by Emerson must be at least two million Shares (or, if less, all of the Sh▇▇▇▇ ▇▇en held by Emerson and its Subsidiaries), (iv) the proposed offering of Shares of ▇▇▇▇▇▇▇able Securities must be an underwritten offering, (v) the Company shall not be required to file a shelf registration statement pursuant to Rule 415 of the Securities Act under this Section 5.01(a), (vi) prior to the first anniversary of the Closing Date, no request to register any Registrable Securities may be made prior to such time as the Company is required to file a Registration Statement for such Registrable Securities pursuant to Section 5.01(b), (vii) the Company shall not be required to effect a Demand Registration if within 10 days after receipt of a request, therefor the Company provides written notice of its bona fide intention to file within 60 days a registration statement for an underwritten public offering of securities for its own account, and (viii) the Company shall not be required to effect a Demand Registration during the period 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 Company. In no event shall the Company's right to block or defer a Demand Registration pursuant to this Article 5 permit a block or deferral of longer than a cumulative period of six months, and following any such deferrals, Emerson shall have the right to have a Demand Registration effected at ▇▇▇ ▇▇▇e during the six month period following such block or deferral without restriction hereunder.
(c) Pursuant to Demand Registrations the Company will not be required to register more than (i) four million Shares prior to the date that is one year after the expiration of the Lock-Up Period, (ii) eight million Shares (less any Shares registered under clause (i)) prior to the date that is two years after the expiration of the Lock-Up Period or (iii) twelve million Shares (less any Shares registered under clause (i) and (ii)) prior to the date that is three years after the expiration of the Lock-Up Period; provided that any of the numbers shall be adjusted (x) based on 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 Closing Date but before the effective date of the relevant Demand Registration, and (z) if Emerson requests, and the Company consents, to increase the numbers in ▇▇▇ ▇▇▇egoing limitations (such consent not to be unreasonably withheld, where it will be reasonable for the Company to refuse such consent if it would be reasonably expected to have an adverse effect on the trading price of the Shares), the numbers in clause (b)(i) and (b)(ii) above shall be increased by no more than four million Shares multiplied by the proportion of the year that has passed (as of the date of the request) from the date that is one year and two years respectively after the expiration of the Lock-Up Period provided further that the limitations described in Sections 5.01(a)(ii), (vii) and (viii), this Section 5.01(b) and the proviso in Section 5.04(a) shall not apply if Emerson's Common Stock Interest is equal to or greater than 12.5% and n▇▇▇▇▇▇▇▇▇nding that the Company has fully performed its obligations under Article 2: (A) more than two registration statements initiated pursuant Emerson designates a representative to Section 2(a)serve on the Board in accordance ▇▇▇▇ ▇ection 2.01 of this Agreement and such designee is not elected or appointed to the Board for any reason, or (B) any registration statement during any period in which any other registration statement (other than Emerson's representative on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed Board is removed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness replaced by a ▇▇▇▇▇▇▇▇▇ative designated by Emerson in accordance with Section 2.01 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionAgreement.
Appears in 1 contract
Demand Registration. (a) If, following At any time after the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition 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 the Company other to register under the Securities Act not less than pursuant twenty-five percent (25%) of the shares of Restricted Stock held by such requesting holder or holders for sale in the manner specified in such notice. Notwithstanding anything to the Merger Agreementcontrary contained herein, and no request may be made under this Section 4 within one hundred eighty (ii) ninety (90180) days after the termination effective date of a registration statement filed by the Merger Agreement Company covering a firm commitment underwritten public offering in which the holders of Restricted Stock shall have been entitled to join pursuant to Sections 5 or the failure 6 and in which there shall have been effectively registered all shares of Restricted Stock as to consummate the transactions contemplated thereby regardless which registration shall have been requested.
(b) Following receipt of the reasons thereforeany notice under this Section 4, the Company shall be requested by the Investor to effect the registration under the Securities Act immediately notify all holders of Registrable Shares, then, upon the written request, delivered to the Company (which request Restricted Stock from whom notice has not been received and shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration register under the Securities Act 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 (and in all notices received by the Company from other holders within thirty (30) days after the giving of such notice by the Company). If such method of disposition shall be an underwritten public offering, the holders of a majority of the Registrable Shares 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 has 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 Company (prior to any cut back by an underwriter) is equal to or greater than the number of shares of included Restricted Stock pursuant to this Section 4, 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 when a registration statement covering all shares of Restricted Stock specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been so requested to registersold pursuant thereto.
(bc) Anything contained in Section 2(a) to Notwithstanding the contrary notwithstandingforegoing, 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 2(a4(a) above.
(d) The Company shall be entitled to include in any registration under the Securities Act except statement referred to in this Section 4, for sale in accordance with the following provisions: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.
(ie) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, Whenever a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once requested pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a)4 is for an underwritten public offering, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion only shares of all Registrable Shares, Primary Shares and Other Shares proposed Common Stock which are to be included in such registration would interfere with the successful underwriting may be included in the registration. Notwithstanding the provisions of Sections 4(b) and 4(c), if the underwriter determines that marketing (including pricing) factors require a limitation of all such securitiesthe 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 Registrable Shares, Primary Shares and Other Shares proposed 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 following order:
(A) firstCompany determines not to participate in any such underwriting, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant it may elect to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission withdraw therefrom by written notice, within five (5) days of notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionunderwriter'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) If, following On any date after the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition one-year anniversary of the Company other than pursuant date hereof, if the Executive shall in writing state that she desires to sell Registrable Securities in the Merger Agreement, public securities markets and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, requests the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such the registration under the Securities Act of the Registrable Shares Securities which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary ------------ notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act pursuant to Section 2(a) except in accordance with the ------------ following provisions:
(i) the The Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements one Registration Statement initiated pursuant to this Section 2(a)2, or (B) any registration statement Registration --------- Statement during any period in which any other registration statement Registration Statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares shares of Common Stock are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;.
(ii) the The Company may delay the filing or effectiveness of any registration statement Registration Statement for a period of up to 90 120 days after the date of a request for registration pursuant to this Section 2(a) 2, if at the time of such --------- request (Ai) the Company is engaged, or has bona fide fixed plans to file engage within 60 120 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares shares of Common Stock in which the holders of Restricted Shares Executive may include Registrable Shares Securities pursuant to Section 3 3; or (Bii) a Material Transaction exists at the Company --------- reasonably determines that such timeregistration and offering would interfere with any material transaction involving the Company, provided as approved by the Board of Directors or would be seriously detrimental to the Company; provided, however, that the company Company may only so delay the filing or -------- ------- effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (BSection 2(b) in for ------------ a total of 180 days after the date of a request for registration; and provided, further, that any 18-month such deferred filing shall not count as a -------- ------- request pursuant to this Section 2 if the Executive rescinds such request --------- prior to the expiration of the deferral period; and.
(iii) with With respect to any registration pursuant to this Section 2(a)------- 2, the Company may include in such registration any Primary Shares or Other Sharesshares of Common Stock; PROVIDED- provided, HOWEVERhowever, that if the managing underwriter advises the Company -------- ------- that the inclusion of all Registrable Shares, Primary Shares and Other Shares Securities and/or other shares of Common Stock proposed to be included in such registration would interfere with the successful marketing (including pricing) of all the Registrable Securities proposed to be included in such securitiesregistration, then the number of Registrable Shares, Primary Shares and Other Shares Securities and/or other shares of Common Stock proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares Securities requested to be ----- included in such registration pursuant to Section 2(a)registration;
(B) second, the Primary Sharesshares of Common Stock the Company proposes ------ to register; and
(C) third, any other shares of Common Stock held by holders ----- who are entitled to registration rights.
(c) At any time after filing but before the Other SharesRegistration Statement covering Registrable Securities becomes effective, the Executive may request the Company to withdraw or not to file the Registration Statement. A requested In that event, if such request of withdrawal shall not have been caused by, or made in response to, (i) the material adverse effect of an event on the business, properties, condition, financial or otherwise, or operations of the Company or (ii) a material adverse change in the financial markets, the Executive shall have used her demand registration right under this Section 2 may and the Company shall no --------- longer be rescinded prior obligated to such registration being declared effective by the Commission by written notice register Registrable Shares pursuant to the Company from the Investor; PROVIDED, HOWEVER, that exercise of such rescinded one registration shall not count as a registration statement initiated right pursuant to this Section 2 for purposes of clause (i) above if unless the Executive --------- shall pay to the Company shall have been reimbursed for all out-of-pocket the expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from through the date of such recessionrequest.
Appears in 1 contract
Sources: Executive Subscription Agreement (Moore Medical Corp)
Demand Registration. (a) If, following the earlier of (i) At any time and from time to time commencing one hundred and eighty (180) days after the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of an Initial Public Offering upon written notice to the Company (a “Demand Notice”) delivered by a Qualified Member or Qualified Members requesting that the Company effect the registration (a “Demand Registration”) under the Securities Act (other than pursuant to a Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Merger Agreement, and (iiSecurities Act) ninety (90) days after the termination of any or all of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeRegistrable Securities held by such Qualified Member(s), the Company shall be requested by promptly (but in any event, not later than five (5) Business Days following the Investor Company’s receipt of such Demand Notice) give written notice of the receipt of such Demand Notice to effect all other Members that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Member”). The Company shall use its commercially reasonable efforts, 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 10.1(a) or under Section 10.1(b)), file the appropriate Registration Statement (the “Demand Registration Statement”) subject to Section 10.1(a)(ii) and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration and under the Securities Act applicable state securities laws of (A) the Registrable Shares Securities which the Company has been so requested to register.
register by the Qualified Member(s) in the Demand Notice, (bB) Anything contained in Section 2(aall other Registrable Securities of the same class or series as those requested to be registered by the Qualified Member(s) that the Company has been requested to register by the Demand Eligible Members by written request (the “Demand Eligible Member Request”) given to the contrary notwithstandingCompany within twenty (20) days following the receipt of such Demand Notice, and (C) any Registrable Securities to be offered and sold by the Company, in each case subject to Section 10.1(a)(ii), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities to be so registered. Notwithstanding anything in this Section 10.1 to the contrary, the Company shall not be obligated to (I) effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), (2) Demand Registrations in any six (6)-month period or (BII) effect any registration statement during any period in which any other registration statement Demand Registration within ninety (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto90) 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;
(ii) 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessioneffectiveness of a Demand Registration Statement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Internap Corp)
Demand Registration. (a) IfRequest for Demand Registration. At any time commencing 180 ------------------------------- days after the IPO Effectiveness Date, following the earlier holders of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition at least 15% of the then outstanding Registrable Securities that have an aggregate offering price of at least $10,000,000 (the "Initiating Holders"), may make a written request to the ------------------ Company to register, and the Company shall register, under the Securities Act (other than pursuant to the Merger Agreementa Registration Statement on Form S-4 or S-8 or any successor thereto) (a "Demand Registration"), and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included ------------------- Securities stated in such registrationrequest; provided, however, that the Company shall not -------- ------- be obligated to effect more than four such Demand Registrations on a Securities Act registration form other than Form S-3 (or any successor form thereto). If at the time of any request to register Registrable Securities pursuant to this Section 3(a), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engagedengaged in, or has bona fide fixed plans to file engage in within 60 sixty (60) days of the time of such request, a registration statement in respect of a firm commitment underwritten registered public offering or is engaged in any other activity which, in the good faith determination of Primary Shares the Board of Directors of the Company, would be adversely affected by the Demand Registration to the material detriment of the Company, then the Company may at its option direct that such request be delayed for a reasonable period not in which excess of sixty (60) days from the holders effective date of Restricted Shares such offering or the date of completion of such other activity, as the case may include Registrable Shares pursuant be, such right to Section 3 or delay a request to be exercised by the Company not more than two non-consecutive times in any twelve (B12) a Material Transaction exists at month period; provided, that two such time, provided 60-day periods may be -------- consecutive in the event that (i) the company may only so delay Company would be required to disclose in the filing or effectiveness of a particular prospectus contained in the Registration Statement once pursuant information not otherwise publicly disclosed, and (ii) there is a likelihood, in the reasonable judgment of the Board of Directors of the Company, that such disclosure, or any other action to clause be taken in connection with such prospectus, would materially and adversely affect or interfere with any financing, acquisition, merger or similar transaction involving the Company. Each request for a Demand Registration by the Initiating Holders shall state the amount of the Registrable Securities proposed to be sold and the intended method of disposition thereof.
(Ab) above and once Incidental or "Piggy-Back" Rights with Respect to a Demand ---------------------------------------------------------- Registration. Each of the Designated Holders (other than Initiating Holders ------------ which have requested a registration under Section 3(a)) may offer its or his Registrable Securities under any Demand Registration pursuant to this clause Section 3(b). Within ten (B10) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a)days after the receipt of a request for a Demand Registration from an Initiating Holder, the Company may shall (i) give written notice thereof to all of the Designated Holders (other than Initiating Holders which have requested a registration under Section 3(a)) and (ii) subject to Section 3(e), include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if all of the managing underwriter advises Registrable Securities held by such Designated Holders from whom the Company that has received a written request for inclusion therein within ten (10) days of the inclusion receipt by such Designated Holders of all such written notice referred to in clause (i) above. Each such request by such Designated Holders shall specify the number of Registrable Shares, Primary Shares and Other Shares Securities proposed to be included registered. The failure of any Designated Holder to respond within such 10-day period referred to in clause (ii) above shall be deemed to be a waiver of such Designated Holder's rights under this Section 3 with respect to such Demand Registration, provided that any Designated Holder may waive its rights under -------- this Section 3 prior to the expiration of such 10-day period by giving written notice to the Company, with a copy to the Initiating Holders. If a Designated Holder sends the Company a written request for inclusion of part or all of such Designated Holder's Registrable Securities in a registration, such Designated Holder shall not be entitled to withdraw or revoke such request without the prior written consent of the Company in its sole discretion unless, as a result of facts or circumstances arising after the date on which such request was made relating to the Company or to market conditions, such Designated Holder reasonably determines that participation in such registration would interfere with the successful marketing (including pricing) of all have a material adverse effect on such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionDesignated Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Outboard Marine Corp)
Demand Registration. (a) If, following the earlier of Upon a Registration Notice from (i) the consummation of a mergerMSLEF II, consolidation, tender offer, sale of assets or other disposition on behalf of the Morgan Holders specified therein, to both the Company other than pursuant to the Merger Agreementand SIBV or (▇▇) ▇IBV, and (ii) ninety (90) days after the termination on behalf of the Merger Agreement or the failure SIBV Holders specified therein, to consummate the transactions contemplated thereby regardless of the reasons therefore, both the Company shall be requested by and MSLEF II, in each case in the Investor to manner set forth in Section 12(g) hereof, requesting that the Company effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Morgan Holders or held by such SIBV Holders, thenas the case may be, a▇▇ ▇▇▇cifying, among other things, the number of Registrable Securities which the Morgan Holders or the SIBV Holders, as the case may be, desire to ▇▇▇▇▇▇er and the intended method or methods of disposition of such Registrable Securities, the Company will use its best efforts to effect (at the earliest possible date) 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, however, that the Company shall not be required to effect an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act; and provided, further, that:
(i) in the event that the Company has delivered a Registration Notice in accordance with the provisions of Section 3, neither MSLEF II nor SIBV may deliver a Registration Notice pursuant to this Section 2(a) until the conclusion of such Company Registration Process;
(ii) in the event that SIBV has delivered a Registration Notice in accordance with the provisions of this Section 2(a), neither MSLEF II nor the Company may deliver a Registration Notice pursuant to this Section 2(a) until the conclusion of such SIBV Registration Process;
(iii) in the event that MSLEF II has delivered a Registration Notice in accordance with the provisions of this Section 2(a), neither SIBV nor the Company may deliver a Registration Notice until the conclusion of such MSLEF II Registration Process; and
(iv) if, while a Registration Process is pending pursuant to this Section 2, the Chief Financial Officer of the Company, after consultation with outside counsel for the Company, has determined in good faith that the filing of a registration statement would require the disclosure of material information which the Company has a bona fide business purpose for preserving as confidential, the Company shall not be required to effect a registration pursuant to this Section 2 until the earlier of (A) the date upon which such material information is disclosed to the public or ceases to be material, and (B) 90 days after the Chief Financial Officer of the Company makes such good faith determination (a "Company Delay"); provided, however, the Company shall only be entitled to a Company Delay once in connection with any MSLEF II Demand in any 270-day period during the term of this Agreement and once in connection with any SIBV Demand in any 270-day period during the term of this Agreement.
(b) In the event that any registration pursuant to a request by MSLEF II under this Section 2, shall involve, in whole or in part, an underwritten offering, then MSLEF II shall have the right to designate one or more nationally recognized investment banking firms as the sole managing or co-managing underwriter(s) of such underwritten offering which may consist of or include, at the option of MSLEF II, Morgan Stanley & Co. Incorporated ("MS&Co."). If MS&Co. shall not ▇▇ ▇▇▇ ▇▇▇▇ ▇▇naging underwriter or shall be a co-managing underwriter, then any sole or other co-managing underwriters selected by MSLEF II shall be reasonably acceptable to the Company.
(c) MSLEF II shall have the right to effect up to but not more than two (2) registrations and SIBV will have the right to effect up to but not more than two (2) registrations (each such registration, whether requested by MSLEF II or SIBV, a "Demand"), in each case, pursuant to this Section 2; provided, however, that, without giving effect to any "cutback" imposed by any underwriter, (i) each MSLEF II Demand shall effect the registration and sale of at least 1,000,000 shares of Common Stock (as adjusted for any reclassification, recapitalization, subdivision, stock dividend, stock split or combination of the Company's outstanding securities after the date hereof) and (ii) each SIBV Demand shall effect the registration and sale of at least an aggregate of at least 1,000,000 shares of Common Stock (as adjusted for any reclassification, recapitalization, subdivision, stock dividend, stock split or combination of the Company's outstanding securities after the date hereof). MSLEF II shall have the right to request registration and effect its two registrations (such effective registrations, the "Initial MSLEF II Registrations") prior to SIBV delivering a Registration Notice to MSLEF II and the Company under Section 2(a); provided that, in the event that the Initial MSLEF II Registrations are not effected on or prior to the third anniversary of the effectiveness of this Agreement (such three-year period, the "MSLEF II Exclusive Period"), then SIBV may request registration in accordance with the terms of this Agreement.
(d) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by MSLEF II or SIBV pursuant to this Section 2 shall not be deemed to have been effected for purposes of Section 2, (i) unless it has become effective and maintained effective in accordance with subsection 6(b), (ii) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a material misrepresentation or a material omission by MSLEF II or any of the Selling Holders, on the one hand, or SIBV or any of the Selling Holders, on the other, as the case may be, (iii) 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 some act or omission by MSLEF II or any of the Selling Holders, on the one hand, or SIBV or any of the Selling Holders, on the other, as the case may be, or (iv) unless the registration is deemed to be an effected Demand pursuant to Section 5.
(e) In the event of any underwritten registration of Registrable Securities in which the number of Registrable Securities requested by MSLEF II (in the case of a MSLEF II Demand) or SIBV (in the case of a SIBV Demand) to be included in such registration exceeds the number which the managing underwriter(s) advise MSLEF II or SIBV, as the case may be, in writing can be sold, then there shall be included in such registration the number of Registrable Securities which can be sold, allocated, unless MSLEF II or SIBV, as the case may be, notifies the Company of a different method of allocation, pro rata among the Morgan Holders or the SIBV Holders, as the case may be, on the bas▇▇ ▇▇ the number of Registrable Securities requested to be included therein by each such Morgan Holder or SIBV Holder.
(f) In connection with an▇ ▇▇▇▇▇▇ ▇▇▇▇ by MSLEF II pursuant to this Section 2 (in the case of SIBV, only from and after, but not before, the expiration of the MSLEF II Exclusive Period), each of the Company and SIBV shall have the right to cause the registration of securities for sale for its own account (the "Piggyback Securities"), upon the written request, delivered to request made by the Company and/or SIBV within 10 days after receipt of MSLEF II's Registration Notice (which request shall specify the number of shares intended to be disposed of and the intended method of disposition thereof), in addition to the Registrable Shares proposed Securities of the Morgan Holder(s) being sold pursuant to such MSLEF II Demand, if t▇▇ ▇▇▇▇▇▇ ▇▇ Registrable Securities requested by MSLEF II to be included in such registration does not exceed the number which the managing underwriter(s) advise MSLEF II in writing can be sold; provided that in the event the managing underwriter(s) advise MSLEF II in writing (with a copy to the Company and SIBV) that, in their good faith opinion, inclusion of all such Piggyback Securities would materially and adversely affect the offering and sale of the Registrable Securities then contemplated to be sold by the Morgan Holders, including the per share price thereby obtainable, ▇▇▇▇▇ shall only be included in such registration: (1) first, all securities requested to be included in such registration by the Morgan Holders, (2) second, up to the full number of Piggyback Sec▇▇▇▇▇▇s requested to be included in such registration by the SIBV Holders (if SIBV is entitled hereunder to make such request) in excess of the number or dollar amount of the Morgan Holders' Securities to be included in such registration whi▇▇, ▇▇ the good faith opinion of such underwriter(s), can be sold without materially and adversely affecting such offering (and, if less than the full number of such Piggyback Securities, allocated pro rata among the SIBV Holders on the basis of the number of securities requested to be included therein by each SIBV Holder), (3) third, up to the full number of Piggyback Securities requested to be included in such registration by the Company shallin excess of the number or dollar amount of the Morgan Holders' Securities and SIBV Piggyback Securities (if appli▇▇▇▇▇) which, subject in the good faith opinion of such underwriter(s), can be so sold without materially and adversely affecting such offering. MSLEF II may require that any such Company Piggyback Securities or SIBV Piggyback Securities (if applicable) be included in the offering proposed by the Morgan Holders on the same terms and conditions as such Morgan Hol▇▇▇▇' Registrable Securities are included therein.
(g) In connection with any Demand made by SIBV pursuant to this Section 2(c2, each of the Company and MSLEF II shall have the right to cause the registration of securities for sale for its own account and, in the case of MSLEF II, for the account of the Morgan Holders, upon the written request made by the Company and/o▇ ▇▇▇▇F II within 10 days after receipt of SIBV's Registration Notice (which request shall specify the number of shares intended to be disposed of and the intended method of disposition thereof), in addition to the Registrable Securities of the SIBV Holder(s) belowbeing sold pursuant to such SIBV Demand, promptly if the number of Registrable Securities requested by SIBV to be included in such registration does not exceed the number which the managing underwriter(s) advise SIBV in writing can be sold; provided that in the event the managing underwriter(s) advise SIBV in writing (with a copy to the Company and MSLEF II) that, in their good faith opinion, inclusion of all such Piggyback Securities would materially and adversely affect the offering and sale of the Registrable Securities then contemplated to be sold by the SIBV Holders, including the per share price thereby obtainable, there shall only be included in such registration: (1) first, all securities requested to be included in such registration by the SIBV Holders, (2) second, up to the full number of Piggyback Securities requested to be included in such registration by the Morgan Holders in excess of the number or dollar amount of the SIB▇ ▇▇▇▇ers' Securities to be included in such registration which, in the good faith opinion of such underwriter(s), can be sold without materially and adversely affecting such offering (and, if less than the full number of such Piggyback Securities, allocated pro rata among the Morgan Holders on the basis of the number of securities requested ▇▇ ▇▇ included therein by each Morgan Holder), (3) third, up to the full number of Piggyback Secu▇▇▇▇▇▇ ▇▇▇▇▇▇ted to be included in such registration by the Company in excess of the number or dollar amount of the Morgan Holders' Piggyback Securities and the SIBV Securities which, ▇▇ ▇he good faith opinion of such underwriter(s), can be so sold without materially and adversely affecting such offering. SIBV may require that any such Morgan Holders' Piggyback Securities or Company Piggyback Securiti▇▇ ▇▇ included in the offering proposed by the SIBV Holders on the same terms and conditions as such SIBV Holders' Registrable Securities are included therein.
(h) In connection with each MSLEF II Demand, MSLEF II agrees to use its reasonable best efforts to effect sell or cause to be sold the lesser of (x) all Registrable Securities that it owns at the time of such registration under the MSLEF II Demand and (y) all Registrable Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect managing underwriter advises MSLEF II pursuant to Section 2(a2(e) can be sold in such registration; provided that notwithstanding the foregoing, MSLEF II and any registration Morgan Holder who has requested that its Registrable Securities be ▇▇▇▇▇▇▇▇ ▇▇ such MSLEF II Demand shall be under no obligation to sell its Registrable Securities pursuant to the Securities Act except in accordance first MSLEF II Demand if the price per share of Common Stock on the New York Stock Exchange or The NASDAQ National Market on the Effective Date for such MSLEF II Demand has decreased by 5% since the date on which MSLEF II delivered its Registration Notice with the following provisions:respect to such MSLEF II Demand.
(i) Concurrently with the delivery by MSLEF II of a Registration Notice to the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any MSLEF II shall notify in writing each of the Morgan Holders of its intent to cause the registration statement during any period and sale of ▇▇▇▇▇trable Securities. Such notice shall offer each other Morgan Holder the opportunity to include in which any other the registration statement (other than on Form S-4 or Form S-8 promulgated under the such ▇▇▇▇▇▇ ▇▇ ▇▇▇istrable Securities Act or any successor forms thereto) pursuant held by such Morgan Holder as such Morgan Holder may request in writing to which Primary Shares are MSLE▇ ▇▇ ▇▇▇▇▇▇ ▇ business ▇▇▇▇ ▇▇ ▇▇▇▇ipt of MSLEF II's notice, subject to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;Section 2(e).
(iij) the Company may delay the filing or effectiveness Promptly (but in no event later than 2 business days) after receipt by MSLEF II 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular an SIBV Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration Notice pursuant to Section 2(a), MSLEF II shall notify in writing each of the Company may Morgan Holders of its receipt of such Registration Notice. Such no▇▇▇▇ ▇hall offer each Morgan Holder the opportunity to include in the registration such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares ▇▇▇▇▇▇ ▇▇ ▇▇▇istrable Securities held by the Investor requesting that its Registrable Shares be included such Morgan Holder as such Morgan Holder may request in such registration pursuant writing to MSLE▇ ▇▇ ▇▇▇▇▇▇ ▇ business ▇▇▇▇ ▇▇ ▇▇▇▇ipt of MSLEF II's notice, subject to Section 2(a2(g);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession.
Appears in 1 contract
Sources: Registration Rights Agreement (Jefferson Smurfit Corp /De/)
Demand Registration. (a) IfNo later than September 25, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore2000, the Company shall be requested by effect a registration with respect to all of the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered Underlying Shares subject to the Company (which request shall specify Debenture and the number of Registrable Shares proposed to be included in such registration)Warrant, and the Company shall, subject :
(i) within 10 days prior to Section 2(c) belowthe filing of the registration statement, promptly give written notice of the proposed registration to the Investor; and
(ii) as soon as practicable use its best efforts to effect such registration under register (including, without limitation, the Securities Act execution of an undertaking to file post- effective amendments and any other governmental requirements) all Underlying Shares subject to the Debenture and the Warrant which the Investor notifies the Company in writing within fifteen (15) days of receipt of the Registrable Shares which the Company has been so requested notice that it wishes to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; provided, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following orderstatement:
(A) firstprior to September 25, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a)2000 ;
(B) second, within 120 days following the Primary Shareseffective date of any registered offering of the Company's securities to the general public in which the Investor shall have been able effectively to register all Underlying Shares as to which registration shall have been requested; and
(C) thirdafter the Company has effected one such registration and such registration has been declared or ordered effective, except as provided in Section 5.2. Subject to the foregoing clauses (A) through (C), the Other Shares. A Company shall file a registration statement covering the Underlying Shares so requested registration under this Section 2 may to be rescinded prior registered as soon as practical, but in any event no later than September 25, 2000 and shall use reasonable best efforts to have such registration being statement promptly declared effective by the Commission by written notice Commission. Investor shall be entitled to have the Underlying Shares registered on such registration statement prior to the Company from time it is able to convert the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant Debenture into Underlying Shares and prior to this Section 2 the time it is able to exercise the Warrant for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recessionUnderlying Shares.
Appears in 1 contract
Sources: Subscription Agreement (Insynq Inc)
Demand Registration. (a) IfAt any time after February 9, following the earlier of (i) the consummation of a merger2000, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, provided the Company shall be requested not prior to such date have caused a registration statement to have been declared effective by the Investor SEC pursuant to Section 2.02 covering all of the ▇▇▇▇▇ Shares, the Shareholder may require the Company (pursuant to a written notice to the Company) to effect the registration under the Securities Act of Registrable ▇▇▇▇▇ Shares of the Company other than pursuant to a registration statement on Form S-1 (a "DEMAND REGISTRATION"). Such request (a "DEMAND REQUEST") by the Shareholder shall (i) specify the class and number of ▇▇▇▇▇ Shares which the Shareholder intends to sell or dispose of, and (ii) state the intended method or methods by which the Shareholder intends to sell or dispose of such ▇▇▇▇▇ Shares. In connection with any underwritten public offering, thenthe underwriter thereof shall be selected by the Shareholder, upon subject to the written requestconsent of the Company, delivered which shall not be unreasonably withheld, Upon receipt of a Demand Request, the Company shall (as requested) cause to be filed, within thirty (30) calendar days of the date of delivery to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable request, a registration statement covering such ▇▇▇▇▇ Shares which the Company has been so requested to register, providing for the registration under the Securities Act of such ▇▇▇▇▇ Shares to the extent necessary to permit the disposition of such ▇▇▇▇▇ Shares to be registered in accordance with the intended method of distribution specified in such request. The Shareholder shall have the right to exercise only one such Demand Registration; provided, however, if the Shareholder shall not be entitled to include all of its ▇▇▇▇▇ Shares in a Demand Registration, the Shareholder may be entitled to make an additional Demand Request, notwithstanding the registration of certain of the ▇▇▇▇▇ Shares pursuant to the then pending Demand Registration.
(b) Anything contained in Section 2(a) to Notwithstanding the contrary notwithstandingforegoing, the Company shall not be obligated required to effect any registration statement pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
2.01 (i) within 90 days after the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which date of any other registration statement (other than on Form S-4 of the Company's securities or Form S-8 promulgated under the 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;
(ii) during the pendency of any Demand Blackout Period.
(c) If any of the Company's investment banker or any underwriter determines in good faith that the registration statement and distribution of the ▇▇▇▇▇ Shares (or the use of the registration statement or related prospectus) would materially interfere with any pending financing, merger, acquisition or corporate reorganization involving the Company may delay (or would require premature disclosure thereof), and promptly gives the Shareholder written notice of such determination following its Demand Request, the Company shall be entitled to postpone the filing or effectiveness of any the registration statement for a period of up otherwise required to 90 days after be prepared and filed by the date of a request for registration Company pursuant to Section 2(a) if at 2.01 for a reasonable period of time, not to exceed 90 days (a "Demand Blackout Period"). The Company shall promptly notify the time Shareholder of the expiration or earlier termination of any Demand Blackout Period, and upon such request (A) expiration or termination the Company is engaged, or has bona fide plans to shall immediately file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares2.01. A requested registration The rights under this Section 2 2.01 shall be separate and distinct from any other rights the Shareholder may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this have under Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession2.02.
Appears in 1 contract
Demand Registration. (a) IfAt any time, following the earlier of (i) the consummation of upon written notice from a merger, consolidation, tender offer, sale of assets or other disposition of Holder requesting that the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of any or all of the Registrable SharesSecurities held by such Holder, then, upon the written request, delivered to the Company which notice (which request a "Demand Registration Notice") shall specify the number intended method or methods of disposition of such Registrable Shares proposed to be included in such registration)Securities, the Company shall, subject to Section 2(c) below, promptly shall use its best efforts Best Efforts to effect such 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 Registrable Shares which intended method or methods of disposition stated in such request, PROVIDED that:
(i) if prior to receipt of a Demand Registration Notice, the Company has been so 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 to register.
would materially and adversely affect or interfere with such financing plan of the Company or its subsidiaries (b) Anything contained in Section 2(a) to the contrary notwithstandinga "Transaction Blackout"), the Company shall not be obligated required to effect a registration pursuant to this Section 2(a) any registration under until the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective earliest of (A) more than two registration statements initiated pursuant to Section 2(a)the abandonment of such offering, or (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 statement during any period of the written notice from the Company referred to above in which any other registration statement this subsection (other than on Form S-4 or Form S-8 promulgated under the 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 daysi);
(ii) if, while a registration request is pending pursuant to this Section 2(a), the Company 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 or effectiveness of any a 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 (A) would be materially detrimental to the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such timeCompany, provided that the company may only so Company shall not be permitted to delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to requested registration in reliance on this clause (Bii) more than once in any 1812-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 Company demanded pursuant to this Section 2(a); or (B) if such registration request is for a number of Registrable Securities 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 the Investor and its Affiliates.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)): (i) if it is withdrawn based upon material adverse information relating to the Company; or (ii) if after it has become effective such registration is interfered with respect by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, 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) Holders other than the Holder initiating the demand pursuant to Section 2(a) shall have the right to include their shares of Registrable Securities in any registration pursuant to Section 2(a); PROVIDED that the Investor may exclude participation by other Holders in connection with registrations pursuant to two demands (no two of which can be in consecutive years). In 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 designated by such Holder pursuant to Section 2(c) that, in such firm's good-faith opinion, marketing factors require a limitation on the number of shares to be underwritten, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion number of all Registrable Shares, Primary Shares and Other Shares proposed shares to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares underwriting and Other Shares proposed to be included in such registration shall be included in allocated PRO RATA among the following order:Holders on the basis of the shares of Registrable Securities held by each such Holder.
(Ae) first, 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 Shares held Securities requested by the Investor requesting that its Registrable Shares be included in such registration a Holder pursuant to 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 such Holder.
(Bf) secondIn the event that any Demand Registration Notice includes a request for registration of the Warrant (or any portion thereof), the Primary Shares; and
(C) thirdCompany may elect, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice (the "Election Notice") to the Company from Investor given within five (5) business days of the Investor; PROVIDEDCompany's receipt of such Demand Registration Notice, HOWEVER, that to purchase the Warrant (or such rescinded portion thereof) in lieu of proceeding with the registration shall not count as a registration statement initiated of the Warrant pursuant to this Section 2 for purposes 2. On the third (3rd) business day following the Company's delivery to such Holder of clause the Election Notice, the Company shall pay to the Holder by wire transfer of immediately available funds an amount equal to (i) above if the Company shall have been reimbursed average of the Closing Prices (as defined in the Warrant) of the Common Stock for all out-of-pocket expenses incurred by the Company twenty (20) consecutive Trading Days (as defined in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(athe Certificate of Designation of the Series A Preferred Stock) for a period of 180 days from preceding the date of delivery of the Demand Registration Notice, MULTIPLIED BY (ii) the total number of shares of Common Stock that would be issuable upon conversion of the shares of Series A Preferred Stock represented by the Warrant (or such recessionportion thereof) LESS the number of shares of Common Stock with an aggregate Trading Price (as defined in the Warrant) as of the date of the Demand Registration Notice equal to the Warrant Price (as defined in the Warrant) for the Warrant (or such portion thereof).
Appears in 1 contract
Demand Registration. (ai) If, following After the earlier of (ix) December 29, 1998 or (y) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition completion by the Company of the Company other than first underwritten public offering of Common Stock that is effected pursuant to the Merger Agreementa registration statement filed with, and declared effective by the SEC under the Securities Act, except as provided in 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 (ii) ninety (90) days after which request shall specify the termination Registrable Securities so requested to be registered, the Proposed Amounts thereof and the intended method of disposition by the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeRegistering Mas Stockholders), the Company shall be requested by the Investor will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of the Proposed Amount of Registrable SharesSecurities, thenfor disposition in accordance with the intended method of disposition stated in such request; PROVIDED, upon HOWEVER, that (A) if in the written requestgood faith judgment of the Board of Directors of the Company, delivered 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 for more than 120 days if such method of disposition is not an underwritten public offering. The Company shall specify be entitled to include in any registration statement filed pursuant to this Section 9(b): (x) securities of the number Company held by any other securities holder of Registrable Shares proposed the Company, and (y) in an underwritten public offering, securities of the Company to be included sold by the Company for its own account, except as and to the extent that (1) in the written opinion of the managing underwriter, which shall be an underwriter of nationally recognized standing (if such registrationmethod of disposition shall be an underwritten public offering), such inclusion would materially adversely affect the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act marketing of the Registrable Shares Securities to be sold by the Registering Mas Stockholders or (2) in the 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 price at which the Company has been so requested Registrable Securities may be sold pursuant to registerthe plan of distribution.
(bii) Anything contained in Section 2(a) to the contrary notwithstanding, the The Company shall not be obligated to take any action to effect any registration requested by the Registering Mas Stockholders pursuant to Section 2(a9(b)(i) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective hereof (A) more than after the Company has effected two registration statements initiated (2) such registrations pursuant to Section 2(a)this Agreement and each such registration has been declared or ordered effective, or (B) any registration statement during any the period in which any other registration statement (other than starting with the date 30 days prior to the Company's estimate of the date of filing of, and ending on Form S-4 or Form S-8 promulgated under the 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;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 date 180 days after the effective date of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such requestof, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such timeCompany initiated registration, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant Company is using all reasonable efforts to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in cause such registration any Primary Shares statement to become effective, or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of six (6) months after the Company has effected one such registration pursuant to this Agreement and such registration has been declared or ordered effective, such 180 days from day period to commence on the date the registration statement was declared or ordered effective.
(iii) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 9(b) shall not be deemed to have been effected (A) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto solely by reason of the refusal of the Registering Mas Stockholders to 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 recessionregistration, (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 court for any reason other than a misrepresentation or an omission by the Registering Mas Stockholders, 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 some wrongful act or omission, or act or omission in bad faith, by the Registering Mas Stockholders.
Appears in 1 contract
Sources: Stockholders' Agreement (Neff Corp)
Demand Registration. (a) If, following At any time after the earlier to occur of (i) the consummation third anniversary of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, this Agreement and (ii) ninety that date which is six (906) days months after the termination of date upon which the Merger Agreement or Registration Statement for use in the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeInitial Public Offering shall have been declared effective, if the Company shall be requested the holders of at least 60 percent of the Restricted Securities (based on Common Stock Equivalents) held by the Investor all Investors to effect the registration under the Securities Act of Registrable Shares, thenit shall within 10 days of such request give written notice to the other Stockholders of its requirement to so register such Registrable Shares and, upon the written request, delivered to the Company within 30 days after delivery of any such notice by the Company, of the other Stockholders to include in such registration Registrable Shares (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(cSECTION 2(b) below, promptly thereafter use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to registerregister for sale in accordance with the method of distribution specified in the initiating request. If such method of distribution is an underwritten Public Offering, the Company may designate the managing underwriter for such offering, subject to the approval of those Stockholders holding a majority of the Registrable Shares requested to be included in such offering (which approval shall not be unreasonably withheld).
(b) Anything contained in Section SECTION 2(a) to the contrary notwithstanding, the Company shall not be obligated to effect pursuant to Section SECTION 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements Registration Statements initiated pursuant to Section SECTION 2(a); PROVIDED HOWEVER, that if the Investors were unable to sell at least 90% of the Registrable Shares requested to be included in the last registration pursuant to SECTION 2(a) as a result of an underwriter's cutback, then additional registrations shall be added to this SECTION 2(b)(I) until the foregoing condition is satisfied, or (B) any registration statement Registration Statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 180 days;
(ii) the Company may delay the filing or effectiveness of any registration statement Registration Statement for a period of up to 90 days after the date of a request for registration pursuant to Section SECTION 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans proposes to file within 60 days of the time of such requestengage, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month periodTransaction; and
(iii) with respect to any registration pursuant to Section SECTION 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) firstFIRST, the Registrable Shares held by the Investor Stockholders requesting that its their Registrable Shares be included in such registration pursuant to Section SECTION 2(a), PRO RATA based upon the number of Restricted Securities owned by each such Stockholder at the time of such registration; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the PRO RATA inclusion of Registrable Shares held by all Management Stockholders would interfere with the successful marketing (including pricing) of such securities, then the managing underwriter may reduce that percentage of Registrable Shares held by Management Stockholders that may be included PRO RATA in the proposed registration, which percentage may be smaller than the percentage of Registrable Shares held by the Investors to be included in such registration;
(B) secondSECOND, the Primary Shares; and
(C) thirdTHIRD, the Other Shares. .
(c) A requested registration under this Section SECTION 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from those Stockholders who initiated the Investorrequest; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section SECTION 2 for purposes of subclause (A) of clause (i) of subsection (b) above if the Company shall have been reimbursed (pro rata by the Stockholders requesting registration or in such other proportion as they may agree) for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further registration; PROVIDED FURTHER, HOWEVER, that no request such Stockholders shall not be required to register Registrable Securities may be reimburse the Company if such rescission shall have been caused by, or made pursuant to this Section 2(ain response to, the material adverse effect of an event on the business, prospects, properties, condition (financial or otherwise) for a period or operations of 180 days from the date of such recessionCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (Jetblue Airways Corp)
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of At any time that the Company other than pursuant is eligible to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure use Form S-3 to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration register its securities under the Securities Act of Registrable Shares1933, thenas amended (the "Securities Act"), upon the written request, delivered and prior to the Expiration Date, the Warrantholder shall have the right to make written request of the Company to register as a shelf registration under the rules and regulations (which request shall specify the number "Regulations") of the Securities and Exchange Commission (the "SEC") all of the shares of Common Stock issuable upon exercise of this Warrant or any other securities received by or to be received by the Warrantholder upon exercise of the Warrant (the "Registrable Stock"). The underlying shares of Registrable Shares proposed to be included Stock specified in such registration), request or a request pursuant to Section 4(c) hereof is referred to hereto as the "Subject Stock." Promptly upon receipt of such request the Company shall, subject to Section 2(cshall file with the SEC a registration statement on the applicable form for the registration of the Subject Stock ("registration statement") below, promptly and use its best efforts to effect cause such registration under statement to become effective (including, without limitation, filing post-effective amendments and appropriate compliance with the Securities Act Regulations) as soon as practicable to permit or facilitate the sale and distribution of the Registrable Shares which Subject Stock. The Company is obligated to effect only one (1) such registration pursuant to this Section 4(a). Notwithstanding the provisions of this Section 4(a), if the Company has been so requested to register.
(b) Anything contained in Section 2(a) shall furnish to the contrary notwithstandingWarrantholder 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 a registration statement to be filed in light of the existence of non-public information regarding the Company and it is therefore essential to defer a filing of such registration statement, the Company shall not be obligated have the right to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the defer such filing or effectiveness of any registration statement for a period of up to 90 not more than one hundred eighty (180) days after receipt of the date of request from the Warrantholder to effect such a request for registration pursuant to Section 2(a) if at the time of such request (A) registration; provided, however, that the Company is engaged, or has bona fide plans to file within 60 days of may not utilize the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement right more than once pursuant to clause (A) above and once pursuant to this clause (B) in any 18twenty-four month period; and
(iii) with respect to and provided, further that the Warrantholder may, at any registration pursuant to Section 2(a)time in writing, the Company may include in withdraw such request for such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if and therefore preserve the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included right provided in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a4(a) for a period of 180 days from the date of Warrantholder to request such recessionregistration.
Appears in 1 contract
Sources: Warrant Agreement (Bayard Drilling Technologies Inc)
Demand Registration. (a) If, following the earlier of (i) the consummation of if, while a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than registration request is pending pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registrationthis Section 2(a), the Company shalldetermines, subject to Section 2(c) belowfollowing consultation with and receiving advice from its legal counsel, promptly use its best efforts to effect such that the filing of a registration under statement would require the Securities Act disclosure of material information that the Registrable Shares Company has a bona fide business purpose for preserving as confidential and the disclosure of which the Company has been so requested to register.
(b) Anything contained determines reasonably and in Section 2(a) to good faith would have a material adverse effect on the contrary notwithstandingCompany, the Company shall not be obligated 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) 30 days after the Company makes such determination, provided, however, that the Company -------- ------- shall not be permitted to delay a requested registration in reliance on this clause (i) more than twice in any registration under the Securities Act except in accordance with the following provisions:12-month period;
(iii) the Company shall not be obligated to use its best efforts 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 and cause a registration statement relating to become effective a registration request pursuant to this Section 2: (A) in the case of a registration request by Transocean or any of its Affiliates, on more than two registration statements initiated pursuant three occasions after such time as Transocean 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 Transocean 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 Transocean or its Affiliates may exercise their rights under this Section 2(a2), 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 Transocean and its Affiliates may exercise their rights under this Section 2 and (2) 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 the number of occasions on which such Permitted Transferee or its Affiliates may exercise their rights under this Section 2).
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)), (i) unless the registration statement during any period filed in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold connection therewith has been filed and not withdrawn or has been declared effective within the prior 90 days;
become effective, (ii) the Company may delay the filing or effectiveness of any if after such registration statement has become effective, it becomes subject to any stop order, or there is issued an injunction or other order or decree of the SEC or other governmental agency or court for any reason other than a period misrepresentation or an omission by such Holder, which injunction, order or decree prohibits or otherwise materially and adversely affects the offer and sale of up the Registrable Securities so registered prior to 90 days after the date 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 are not satisfied other than by reason of some act, misrepresentation or omission by a request for Holder and are not waived by the purchasers or underwriters.
(c) In the event that any registration pursuant to this Section 2(a) if 2 shall involve, in whole or in part, an underwritten offering, Holders owning at least 50.1% of the time Fair Market Value of the Registrable Securities to be registered in connection with such offering shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such request underwritten offering.
(Ad) The Company shall have the Company is engaged, or has bona fide plans right to file within 60 days cause the registration of additional securities for sale for the time account of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which any person (including the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (BCompany) in any 18-month period; and
(iii) with respect to registration of Registrable Securities requested by any registration Holder pursuant to Section 2(a); provided, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVERhowever, that if the managing underwriter advises or other independent marketing agent for such offering (if any) determines that, in its opinion, the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares additional securities proposed to be included sold will materially and adversely affect the offering and sale of the Registrable Securities to be registered in such registration would interfere accordance with the successful marketing (including pricing) intended method or methods of all disposition then contemplated by such Holder only the number or principal amount of such additional securities, then if any (in excess of the number or principal mount of Registrable SharesSecurities), Primary Shares which, in the opinion of such underwriter or agent, can be so sold without materially and Other Shares proposed to be included in adversely affecting such registration offering shall be included in such registration. The rights of a Holder to cause the following order:
(A) first, the registration of additional Registrable Shares Securities held by the Investor requesting that its such Holder in any registration of Registrable Shares be included in such registration Securities requested by another Holder pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may shall be rescinded prior to such registration being declared effective governed by the Commission by written notice to agreement of the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count Holders with respect thereto as a registration statement initiated pursuant to this provided in Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession11(a).
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeFollowing an Initial Public Offering, the Company shall be requested by the Investor use all commercially reasonable efforts to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to qualify for Registration on Form S-3 for secondary sales. After the Company has qualified for the use of Form S-3, Investors holding a majority of the outstanding Registrable Securities then held by all Investors shall have the right to request not more than three (which request 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 specify be in writing and shall state the number of shares of Registrable Shares proposed Securities to be included in such registrationdisposed of and the intended method of disposition of shares by the Investors), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding, provided that the Company shall not be obligated to effect effect, or take any action to effect, any such Registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions:2(b):
(i) Unless the Company shall not be obligated Investors propose to use its best efforts dispose of shares of Registrable Securities having an aggregate price to file the public (before deduction of underwriting discounts and cause to become effective (Aexpenses of sale) of more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to 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$5,000,000;
(ii) Within 180 days of the Company may delay 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 or effectiveness of of, and ending on the date ninety (90) days immediately following the effective date of, any registration statement for a period pertaining to securities 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 (A) the Company is engaged, (other than a Registration of securities in a Rule 145 transaction or has bona fide plans with respect to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such timean employee benefit plan), provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant Company is actively employing in good faith all commercially reasonable efforts to clause (A) above and once pursuant cause such registration statement to this clause (B) in any 18-month periodbecome effective; and
(iii) with respect to any registration pursuant to Section 2(a)provided, however, that the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated only delay an offering pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a2(b)(iii) for a period of 180 days from not more than sixty (60) days, if a filing of any other registration statement is not made within that period and the date Company may only exercise this right once in any twelve (12) month period. The Company shall give written notice to all Other Stockholders of the receipt of a request for Registration pursuant to this Section 2(b) and shall provide a reasonable opportunity for such recessionOther Stockholders to participate in the Registration, provided that if the Registration is for an underwritten offering, the terms of Section 2(a)(ii) shall apply to all participants in such offering. Subject to the foregoing, the Company will use all commercially reasonable efforts to effect promptly the Registration of all shares of Registrable Securities on Form S-3 to the extent requested by the holders thereof for purposes of disposition.
Appears in 1 contract
Sources: Registration Rights Agreement (Old Glory Holding Co)
Demand Registration. (a) IfUpon notice to the Company (x) from Shareholder(s) holding in the aggregate $15.0 million or more of the Restricted Shares (or Preferred Shares which are convertible into Restricted Shares) or (y) Class B Shareholder(s) holding in the aggregate $5.0 million or more of the Restricted Shares (or Preferred Shares which are convertible into Restricted Shares), following such Shareholders (the earlier "Requesting Shareholders") shall have the right to request in writing a registration of such shares that are (or which would be upon conversion) Restricted Shares. Such request (a "Demand Request") by the Requesting Shareholders shall (i) specify the consummation number of a merger, consolidation, tender offer, sale of assets Restricted Shares which each Requesting Shareholder intends to sell or other disposition of the Company other than pursuant to the Merger Agreementdispose of, and (ii) state the intended method or methods by which the Requesting Shareholder intends to sell or dispose of such Restricted Shares. Upon receipt of a Demand Request pursuant to this Section 2.1, the Company shall (as requested) (i) cause to be filed, within the later of (x) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless date of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered delivery to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Demand Request, or (y) one hundred eighty (180) days after the effectiveness of the most recently filed registration statement by the Company, a registration statement covering such Restricted Shares which the Company has been so requested to register, providing for the registration under the Securities Act of such Restricted Shares to the extent necessary to permit the disposition of such Restricted Shares so to be registered in accordance with the intended method of distribution specified in such Demand Request, provided, that the Company may delay making such filing or taking such action by not more than one hundred twenty (120) days if the Company, prior to the time it would otherwise have been required to file such registration statement or take such action, determines in good faith that the filing of such registration statement or the taking of such action would require the disclosure of material, non-public information that, in the reasonable judgment of the Company, would be detrimental to the Company if so disclosed (and a delay would be likely to reduce the detrimental effect of such disclosure or obviate the need for such disclosure to be made, or would otherwise adversely affect a financing, acquisition, disposition, merger or other material transaction), (ii) shall use its best efforts to have such registration statement declared effective by the Commission as soon as practicable thereafter, and (iii) refrain from filing any other registration statements with respect to any other securities of the Company until such date which is one hundred eighty (180) days following effectiveness of the registration statement filed in response to the Demand Request. Subject to any existing written agreement between the Company and Bear, ▇▇▇▇▇▇▇ & Co. Inc., the underwriter shall be selected by the Requesting Shareholders and shall be reasonably acceptable to the Company for any registration pursuant to this Section 2.1.
(b) Anything contained in In the event that the Company is required to file a registration statement covering any Restricted Shares of any Requesting Shareholder(s) pursuant to Section 2(a2.1(a) to the contrary notwithstandingabove, the Company shall not be obligated permitted to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
include newly-issued securities (i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B"Piggyback Securities") in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a)such registration. Notwithstanding the foregoing, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter of such proposed registration determines and advises the Company in writing that the inclusion of all Registrable Shares, Primary Shares and Other Shares Piggyback Securities proposed to be included in such registration the underwritten public offering would interfere with the successful marketing (including pricing) of all such securitiesthe Requesting Shareholders' Restricted Shares, then the number Company shall not be permitted to include any Piggyback Securities in excess of Registrable Sharesthe amount, Primary Shares if any, of Piggyback Securities which the managing underwriter of such underwritten offering shall reasonably and Other Shares proposed in good faith agree in writing to include in such offering in excess of any amount to be included in such registration registered for the Requesting Shareholder(s). The Piggyback Securities that are excluded from the underwritten public offering pursuant to the preceding sentence shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company withheld from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred market by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 period, not to exceed 90 days from the date closing of such recessionunderwritten public offering, that the managing underwriter determines is necessary in order to effect such underwritten public offering.
(c) The Company shall not be required to comply with more than four (4) Demand Requests, one (1) of which shall be reserved for IAMP (El Sitio) Investments Ltd. (and its affiliates), one (1) of which shall be reserved for IMPSAT Corporation, one (1) of which shall be reserved for the Initial Shareholders, and one (1) of which shall be reserved for the Class B Shareholders holding a majority of the Class B Preferred Shares or Restricted Shares issued upon conversion of Class B Preferred Shares; provided, that the Class B Shareholders and the Class A Shareholders shall each have two (2) Demand Rights per annum commencing at such time as the Company becomes eligible to register its Common Shares on Form F-3, for so long as the Company remains, or at any time the Company is, so eligible.
Appears in 1 contract
Demand Registration. (a) If, following the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, If the Company shall be requested by the Investor Requisite Percentage of Stockholders to effect the a registration under the Securities Act of Registrable SharesShares in accordance with this Section, then, upon then the Company shall promptly give written request, delivered notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Registrable Shares requested to be included in such proposed registration by such holders who respond in writing to the Company Company's notice within 30 days after delivery of such notice (which request response shall specify the number of Registrable Shares proposed to be included in such registration), the . The Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such registration on an appropriate form, including Form S-2 or S-3, if available, under the Securities Act of the Registrable Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; provided, however, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) file more than two four registration statements in total pursuant to this Section or (C) file more than one registration statement pursuant to this Section within any consecutive 180-day period, which registration statement(s) were initiated pursuant to this Section 2(a), and become effective or which are rescinded by the Stockholders without reimbursement as specified in the last paragraph of this Section;
(Bii) the Company shall not be obligated to file any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the 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;
(ii) 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a)this Section, the Company may include in such registration any Primary Shares or Other Shares; PROVIDEDprovided, HOWEVERhowever, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a)Primary Shares;
(B) second, the Primary SharesRegistrable Shares held by the Stockholders, pro rata based upon the number of Restricted Shares (based upon Common Stock equivalents) owned by each such Stockholder at the time of such registration; and
(C) third, the Other Shares. ,
(b) A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from by a majority of the InvestorStockholders requesting such registration; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause paragraph (ia) above if such registration statement is rescinded prior to the effective date thereof and if the Stockholders initiating such request shall have reimbursed the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration. A registration and provided further that no request to register Registrable Securities may be made shall not count as a registration statement initiated pursuant to this Section 2(afor purposes of paragraph (a) for a period above unless it becomes effective and the Stockholders requesting such registration are able to sell at least 80% of 180 days from the date of Registrable Shares sought to be included in such recessionregistration statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Young America Holdings Inc)
Demand Registration. 2.1. Request for Registration on Form Other Than Form F-3. If a Qualified IPO has not occurred by December 31,2008, then, in the event that the Company receives from any Holder at any time thereafter a written request that the Company effect any Registration with respect to at least thirty percent (a30%) Ifof 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”), following subject to the earlier terms of this Agreement, the Company shall (i) within ten (10) days of receipt of such written request, give written notice of the consummation of a merger, consolidation, tender offer, sale of assets or proposed Registration to all other disposition Holders and other shareholders of the Company other than pursuant to with piggyback registration rights (including, for the Merger Agreementavoidance of doubt, the Company Shareholders), and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons thereforeas soon as practicable, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Registration of those Registrable Securities Act of the Registrable Shares (“Demand Registration”) which the Company has been so requested to register.
(b) Anything contained in Section 2(a) Register, 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 contrary notwithstandingCompany within ten (10) days after written notice from the Company, the subject to limitations of this Section 2. The Company shall not be obligated to take any action to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause Section 2.1 (Bx) in after the Company has effected two (2) Registrations pursuant to this Section 2.1; (y) after the Company has effected one Registration pursuant to this Section 2.1 during any 18-month period; and
nine (iii) 9)-month period other than a registration from which the Registrable Securities of the Holders have been excluded (with respect to all or any registration pursuant to Section 2(a)portion of the Registrable Securities, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed Holders requested to be included in such registration would interfere with registration) pursuant to the successful marketing provisions of Section 2.5(d) and 3.2(b); or (including pricingz) if the Initiating Holder proposes to dispose of all such securities, then the number shares of Registrable Shares, Primary Shares and Other Shares proposed Securities that may be immediately Registered on Form F-3 pursuant to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration a request made pursuant to Section 2(a);
(B) second, 2.2. The substantive provisions of Section 2.5 shall be applicable to the Primary Shares; and
(C) third, the Other Shares. A requested registration Registration initiated under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made pursuant to this Section 2(a) for a period of 180 days from the date of such recession2.1.
Appears in 1 contract
Sources: Registration Rights Agreement (Camelot Information Systems Inc.)
Demand Registration. (a) IfUpon written notice from ▇▇▇▇▇, following the earlier ------------------- Company shall use its reasonable best efforts to effect at the earliest possible date and maintain the registration under the Act of offers and sales of Common Stock by ▇▇▇▇▇, any of its Permitted Transferees, any other Holders pursuant to Section 7.2, and any underwriter with respect to such stock (and no offers and sales of any other securities by any other Person shall be registered with such Common Stock of ▇▇▇▇▇ without ▇▇▇▇▇'▇ prior consent, unless such Person is a Holder who exercises rights under Section 7.2), in accordance with the intended method or methods of disposition specified by ▇▇▇▇▇ (including, but not limited to, an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule of similar effect) promulgated under the Act); provided, however, -------- ------- that if, after a registration request pursuant to this Section 7.1 has been made, the general counsel of the Company has determined in good faith that (i) the consummation filing of a merger, consolidation, tender offer, sale registration request would require the disclosure of assets or other disposition of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shall, subject to Section 2(c) below, promptly use its best efforts to effect such registration under the Securities Act of the Registrable Shares material information which the Company has been so requested a bona fide business purpose for preserving as confidential or (ii) the Company is then unable to register.
comply with requirements of the Securities and Exchange Commission (b) Anything contained in Section 2(a) to the contrary notwithstanding"SEC"), the Company shall not be obligated to effect a registration pursuant to this Section 2(a) any registration under 7.1 until the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective earlier of (A) more than two registration statements initiated pursuant the date upon which such material information is disclosed to Section 2(a)the public or ceases to be material or the Company is able to so comply with SEC requirements, as the case may be, or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any registration statement for a period of up to 90 30 days after the date general counsel of a request for registration pursuant to Section 2(a) if at the time of such request (A) the Company is engaged, or has bona fide plans makes such good faith determination. ▇▇▇▇▇ will have the right to file within 60 days of the time of such request, a request registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 7.1 an aggregate of four (4) times, excluding from such number any exercise by ▇▇▇▇▇ of its rights pursuant to Section 7.2(f); provided, -------- however, that a registration requested by ▇▇▇▇▇ pursuant to this Section 7.1 ------- shall not be deemed to have been effected (and, therefore, not requested for purposes of clause this Section 7.1), (i) above unless it has become effective, (ii) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by ▇▇▇▇▇ and, as a result thereof, the amount of Common Stock requested to be registered by ▇▇▇▇▇ for its own account cannot be completely or timely distributed in accordance with the plan of distribution set forth in the related registration statement or (iii) if the Company shall have been reimbursed for all out-of-pocket expenses incurred by conditions to closing specified in the Company purchase agreement or underwriting agreement entered into in connection with such rescinded registration and provided further that no request to register Registrable Securities may be made are not satisfied or waived other than by reason or some act or omission by ▇▇▇▇▇. In connection with any registration requested pursuant to this Section 2(a) 7.1, the Company shall take such other actions, including, without limitation, listing such shares for a period trading on any securities exchange or inter- dealer quotation system and registering or qualifying such shares under state securities laws, as may be reasonably requested by ▇▇▇▇▇ or any underwriter in connection with such registration; provided, further that if the amount of 180 days from -------- ------- Common Stock to be registered by ▇▇▇▇▇ pursuant to this Section 7.1 is reduced by reason of the date exercise of piggyback rights and the priorities set forth in Section 7.2 (the aggregate amount of such recessionreductions, the "Shortfall"), ▇▇▇▇▇ shall be given such additional rights to request registration pursuant to this Section 7.1 as is necessary to provide for the registration of Common Stock of ▇▇▇▇▇ in the aggregate amount of all such Shortfalls.
(b) If ▇▇▇▇▇ consents to the inclusion of offers and sales of any other securities in a registration of Common Stock by ▇▇▇▇▇ pursuant to this Section 7.1 or any Person which is a Holder exercises rights under Section 7.2 to include securities in such registration and ▇▇▇▇▇ or the underwriter in connection with such registration later determines that such offering might be materially and adversely affected by the inclusion of such securities, including by reason of the identity of the Holder thereof or the fact that such Holder is an employee of the Company, ▇▇▇▇▇ may in its sole discretion exclude all or, in such manner and number as ▇▇▇▇▇ in its sole discretion deems appropriate, some of such securities from such offering; provided, however, that the Third Party -------- ------- Investors shall not be cut back by a greater percentage, relative to the number of shares which they desire to sell in such offering, than ▇▇▇▇▇ is cut back.
Appears in 1 contract
Demand Registration. (a) If, following If at any time after the earlier of (i) the consummation of a merger, consolidation, tender offer, sale of assets or other disposition third anniversary of the Company other than pursuant to the Merger Agreement, and (ii) ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, date hereof the Company shall be requested by the Investor Requisite Senior Holders to effect the a registration under the Securities Act of Registrable SharesRestricted Shares in accordance with this Section, then, upon then the Company shall promptly give written request, delivered notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Restricted Shares requested to be included in such proposed registration by such holders who respond in writing to the Company Company's notice within 15 days after delivery of such notice (which request response shall specify the number of Registrable Restricted Shares proposed to be included in such registration and the intended method of distribution, which may be pursuant to a shelf registration), the . The Company shall, subject to Section 2(c) below, shall promptly use its best efforts to effect such registration on an appropriate form, including Form S-2, if available, under the Securities Act of the Registrable Restricted Shares which the Company has been so requested to register.
(b) Anything contained in Section 2(a) to the contrary notwithstanding; PROVIDED, HOWEVER, that the Company shall not be obligated to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts file more than one registration statement in total pursuant to this Section, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which (A) any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to 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;
60 days or (iiB) the Company may delay has determined in good faith that the filing or effectiveness of any a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for a period of up preserving as confidential, such filing to be delayed until the date which is 90 days after the date of a such request for registration pursuant to this Section 2(a) if at the time of such request (A) 6(a); PROVIDED that the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once registration statement pursuant to this clause (BSection 6(a)(ii)(B) in on one occasion during any 18-twelve month period; and;
(iii) with respect to any the registration pursuant to Section 2(a)this Section, the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the Company in writing that the inclusion of all Registrable Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) firstFIRST, the Registrable Restricted Shares held by all Investors, PRO RATA based upon the number of Restricted Shares owned by each such Investor requesting that its Registrable Shares be included in at the time of such registration pursuant to Section 2(a)registration;
(B) secondSECOND, the Primary Shares; and
(C) thirdTHIRD, the Other Shares.
(b) the Investors requesting a registration pursuant to this Section may, in the notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such Investors shall select one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the Company. The Company shall, together with all Investors proposing to sell Restricted Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from by the Investor; PROVIDEDInvestors holding a majority of the Restricted Shares to be included in such registration under the following circumstances:
(A) If such registration statement is rescinded prior to the filing date, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 for purposes of clause paragraph (ia) above;
(B) If such registration statement is rescinded after the filing date but prior to its effective date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above if the participating Investors (x) have reimbursed the Company shall have been reimbursed for all out-of-pocket fees and expenses incurred by the Company in connection with such rescinded registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company of such fact and provided further requested that no request the Company correct such alleged misstatement or omission and (3) the Company has refused to register Registrable Securities may be made correct such alleged misstatement or omission; and
(C) A registration shall not count as a registration statement initiated pursuant to this Section 2(afor purposes of paragraph (a) for a period above unless it becomes effective and the participating Investors are able to sell at least 80% of 180 days from the date of Restricted Shares sought to be included in such recessionregistration statement.
Appears in 1 contract
Sources: Investor Rights Agreement (Hanger Orthopedic Group Inc)
Demand Registration. (a) IfSubject to the conditions of this Section 2.3, if the Company shall receive at any time and from time to time on or following the earlier of (i) five months after the consummation of a merger, consolidation, tender offer, sale of assets or other disposition closing date of the Company's initial public offering (the "INITIAL OFFERING"), a written request from the Holder that the Company other than pursuant file a registration statement under the Securities Act covering the registration of at least fifty percent (50%) of the Registrable Securities then held by the Holder, then the Company shall take commercially reasonable efforts to have a registration statement filed and declared effective as soon as practicable following the Merger Agreement, date that is one hundred and eighty (ii) ninety (90180) days after the termination closing of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the registration under the Securities Act of Registrable Shares, then, upon the written request, delivered to the Company (which request shall specify the number of Registrable Shares proposed to be included in such registration), the Company shallCompany's Initial Public Offering, subject to the limitations of Section 2(c) below2.3(c), promptly use its best efforts to effect such registration under for the Registrable Securities Act of the Registrable Shares which the Company has been so Holder requested to registerbe registered.
(b) Anything contained If the Holder intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as a part of its request made pursuant to this Section 2.3 and shall enter into an underwriting agreement in Section 2(acustomary form with the underwriter or underwriters selected for such underwriting by the Holder (which underwriter(s) shall be reasonably acceptable to the contrary notwithstanding, the Company).
(c) The Company shall not be obligated to effect more than one registration pursuant to this Section 2(a) any registration under the Securities Act except in accordance with the following provisions:2.3.
(id) the The Company shall not be obligated required to use effect a registration pursuant to this Section 2.3 during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to its best Initial Offering, provided that the Company is making reasonable and good faith efforts to file and cause such registration statement to become effective effective.
(Ae) more than two Notwithstanding the foregoing, if the Company shall furnish to Holders requesting a registration statements initiated statement pursuant to this Section 2(a)2.3, a certificate signed by the President or (B) any the Chairperson of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within it is therefore essential to defer the prior 90 days;
(ii) filing of such registration statement, the Company may delay shall have the right to defer such filing or effectiveness of any registration statement for a period of up to 90 not more than sixty (60) days after receipt of the date request of the Holder; provided that such right to delay a request for registration pursuant to Section 2(a) if at the time of such request (A) shall be exercised by the Company is engaged, or has bona fide plans to file within 60 days no more than once.
(f) No filing of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), by the Company may include shall effect the Holder's rights contained in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, this Section 2.3. The Company and the Holder agree that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed intends to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under this Section 2 may be rescinded prior to such registration being declared effective by the Commission by written notice to the Company from the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as file a registration statement initiated unrelated to a request pursuant to this Section 2 for purposes of clause (i) above if 2.3, the Company shall have been reimbursed for all out-of-pocket expenses incurred by will inform such Holder of such intention and the Company parties will discuss in connection with good faith including such rescinded Holder's shares in such proposed registration and provided further that no request statement rather than pursuant to register Registrable Securities may be made a separate registration statement effected pursuant to this Section 2(a) for a period of 180 days from the date of such recession2.3.
Appears in 1 contract
Demand Registration. At any time after the expiration of one hundred and eighty (a180) If, days following the earlier closing of (i) the consummation Qualifying Public Offering and prior to the expiration or termination of this Agreement, holders of a merger, consolidation, tender offer, sale of assets or other disposition majority of the Company other than pursuant then outstanding Restricted Shares and of the Warrant Shares taken together (the "Demand Holders") may make a written request to the Merger Agreement, and Corporation (iithe "Demand") ninety (90) days after the termination of the Merger Agreement or the failure to consummate the transactions contemplated thereby regardless of the reasons therefore, the Company shall be requested by the Investor to effect the for registration under the Securities Act of Registrable Sharesall or part of the Restricted Shares held by the Demand Holders issuing the Demand, then, upon the written request, delivered to the Company (and which request shall specify the number of Registrable Restricted Shares proposed (including Warrant Shares issuable on the exercise of Warrants that are then exercisable) and the intended method of distribution thereof and as soon as practicable thereafter, the Corporation will cause a registration on Form S-1 or F-1 (on form ▇-▇, ▇-▇, ▇▇ ▇-▇ or F-3 if any of such forms can be used) under the Securities Act , or any comparable form then in force, as selected by the Corporation in its discretion from time to time, to be included filed covering the Restricted Shares specified in such registration), the Company shall, subject to Section 2(cDemand (the "Demand Registration") below, promptly and shall use its best efforts to effect such cause the registration under statement to become effective, subject to the Securities Act following:
(a) Within ten (10) days after receipt of the Registrable Demand, the Corporation shall give written notice (the "Registration Notice") of the Demand to all other Demand Holders who did not join in the Demand. Subject to the applicable provisions of Section 3.1 (to the extent the same are not inconsistent with the provisions of this Section 3.2)) and this Section 3.2, the Corporation will include in the Demand Registration all Restricted Shares of such other Demand Holders and with respect to which the Corporation has received written request for inclusion therein within ten (10) days after the receipt by such other Demand Holders of the Registration Notice. All requests made pursuant to this Section 3.2(a) will specify the aggregate number of Restricted Shares to be registered and also will specify the intended methods of disposition thereof. In requesting the inclusion of Restricted Shares in the registration statement pursuant to this Section 3.2(a), the Warrant Holders may specify Common Shares which could then be acquired by each Warrant Holder pursuant to the Company has been so requested exercise of the Warrant provided that such Warrant Holder shall have acquired Common Shares pursuant to register.the exercise of the Warrant in accordance with the terms thereof prior to the closing of the offering of such shares pursuant to the Demand Registration..
(b) Anything contained Except as provided in Section 2(a3.2(d) to the contrary notwithstanding, the Company Demand Holders shall not be obligated entitled to effect pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective (A) more than two registration statements initiated pursuant to Section 2(a), or (B) any registration statement during any period in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 90 days;
(ii) the Company may delay the filing or effectiveness of any 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 (A) the Company is engaged, or has bona fide plans to file within 60 days of the time of such request, a registration statement in respect of a firm commitment underwritten public offering of Primary Shares in which the holders of Restricted Shares may include Registrable Shares pursuant to Section 3 or (B) a Material Transaction exists at such time, provided that the company may only so delay the filing or effectiveness of a particular Registration Statement once pursuant to clause (A) above and once Demand Registrations pursuant to this clause (B) in any 18-month period; and
(iii) with respect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; PROVIDED, HOWEVER, 3.2 provided that if the managing underwriter advises the Company that the inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration no Demand Registration shall be included in the following order:
(A) first, the Registrable Shares held by the Investor requesting that its Registrable Shares be included in such registration pursuant to Section 2(a);
(B) second, the Primary Shares; and
(C) third, the Other Shares. A requested registration under counted toward this Section 2 may be rescinded prior to such registration being total unless and until declared effective by the Commission by written notice to Securities and Exchange Commission. The Demand Holders issuing the Company from Demand may withdraw their request for a Demand Registration before it becomes effective provided that they reimburse the Investor; PROVIDED, HOWEVER, that such rescinded registration shall not count as a registration statement initiated pursuant to this Section 2 Corporation for purposes of clause (i) above if the Company shall have been reimbursed for all out-of-pocket expenses incurred by the Company in connection with the Demand Registration and in such rescinded registration and provided further that no request to register Registrable Securities may event the same shall not be made counted as a Demand Registration pursuant to this Section 2(a3.2.
(c) If any request for a Demand Registration is for an underwritten public offering, such public offering shall be lead managed by an underwriter or underwriters of recognized national stature in the United States of America, selected by the Corporation.
(d) If the managing underwriter or underwriters of any Demand Registration advises the Corporation in writing that in its or their opinion the number of securities proposed to be sold in such Demand Registration exceeds the number which can be sold in such offering, the Corporation will include in such registration only the number of Restricted Shares, if any, which in the opinion of such underwriter or underwriters, should be so included, and the Warrant Holders and the Preference Shareholders (notwithstanding the conversion of their shares to common shares coincident with the closing of the Qualifying Public Offering) shall have priority over the Common Shareholders in including their shares in the offering and subject to a special allocation to accomplish the foregoing preference in favour of the Warrant Holders and Preference Shareholders, Restricted Shares of the Demand Holders shall be excluded PRO RATA among all Demand Holders that have requested Common Shares to be included in such Demand Registration in the same proportion that their total holdings of Restricted Shares eligible for inclusion in the registration statement at that time bears to the total holdings of Restricted Shares eligible for inclusion in the registration statement of all Demand Holders requesting inclusion; provided, however that (i) if one third (1/3) or more of all Restricted Shares eligible for inclusion in the registration statement of the Restricted Shares requested for inclusion in any Demand Registration are not included in such Demand Registration, then notwithstanding the terms and provision of Section 3.2(b) a majority of the Demand Holders shall be entitled to an additional Demand Registration hereunder (on the same terms and conditions as would have applied to the Demand Holders had such initial Demand Registration not be made).
(e) The Corporation will pay all expenses of any Demand Registration, except that each Demand Holder whose Restricted Shares are included in such registration shall pay all underwriting discounts and commissions applicable to its Common Shares and all accounting and legal fees and expenses of its own accountant and counsel, if any. If the Demand Registration is for an underwritten offering, each Demand Holder including Restricted Shares in such Demand Registration, shall be a party to the applicable underwriting agreement and shall provide customary representations, warranties, opinions and other agreements, and shall be responsible for its PRO RATA share of any underwriting fees, commissions or discounts payable to the underwriters.
(f) Notwithstanding the foregoing, the Corporation may decline to effect a Demand Registration pursuant to this Section 3.2 during the period starting with the date sixty (60) days prior to the Corporation's estimated date of 180 filing of, and ending on a date one hundred and twenty (120) days following the effective date of, a registration statement pertaining to an underwritten public offering of Common Shares for the account of the Corporation, provided that the Corporation's estimate of the date of filing such registration statement is made in good faith. If the Corporation (i) shall furnish to the Shareholders requesting inclusion in such Demand Registration a certificate signed by the President or Chief Executive Officer of the Corporation stating that the Board of Directors of the Corporation has in good faith adopted a resolution stating that it would be detrimental to the Corporation or its shareholders for a registration statement to be filed in the near future; or (ii) desires to postpone filing a registration statement in order to be able to include in such filing audited year-end financial statements prepared in the ordinary course of preparing its annual report to its shareholders (including on Form 10-K or such other applicable form); or (iii) gives notice to the Demand Holders, within thirty (30) days of the receipt of the Demand, that it is engaged or has plans to engage in an firm underwritten registered public offering of its securities within thirty (30) days of the notice date, then the Corporation may delay a requested Demand Registration for not more than one hundred and twenty (120) days from the date of the Demand, provided that such recessiondelay may be invoked on not more than three (3) occasions in total and on not more than one (1) occasion within any twelve (12) month period; and, provided further that such delay may not be invoked within one hundred and eighty (180) days of the Corporation having declined to effect a Demand Registration pursuant to the circumstances set forth in the first sentence of this Subsection 3.2(f).
Appears in 1 contract
Sources: Shareholder Agreement (Capital Environmental Resource Inc)